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) Solicitors: Mitchell Lawyers (Plaintiff) McCabes (Defendant) File Number(s): 2021/14826 Publication restriction: None Judgment Table of Contents Introduction [1] – [9] Orders sought by defendant [10] – [11] Plaintiff's claim [12] – [18] Background and summary of outcome [19] – [33] Evidence [34] – [36] Review of evidence [37] – [100] Three affidavits of Ms Rebecca Gracie, with annexures [38] – [64] Affidavit of Ms Reanna Roberts, with annexures [65] – [70] Affidavit of plaintiff, Mr Michael Hollingsworth [71] – [82] Report of Dr Toni Metelerkamp [83] – [87] Report of Professor Alexander McFarlane [88] – [93] Report of Professor Neil Greenberg [94] – [100] Legal framework for the decision [101] – [105] Submissions of the parties [106] – [137] Defendant's submissions [107] – [126] Plaintiff's submissions [127] – [137] Consideration and determination [138] – [237] Dictates of justice to guide decisions [139] – [143] Inherently unreasonable orders sought by defendant [144] – [150] Support person taking notes is not an appropriate solution [151] – [154] Reasonableness of plaintiff's request for recording [155] – [165] Equality before the law [166] – [170] Trauma-informed approach to litigation [171] – [174] Anti-discrimination legislation [175] – [187] The differing opinions of the experts [188] – [197] Consideration of the defendant's position on the issue [198] – [208] Balancing the respective rights [209] – [234] Direction to be made pursuant to UCPR Sch 7 cl 5(c) [235] – [236] Defendant to nominate an alternative expert [237] Conclusion [238] Costs [239] Case management considerations [240] – [246] Mediation [241] – [243] Smyth order [244] – [246] Orders [247] Introduction 1. These reasons concern the determination of an interlocutory dispute between the parties over what, if any, conditions should apply to a medico-legal examination of the plaintiff by a forensic psychiatrist appointed by the defendant. 2. The procedural context is an imminent trial commencing on 19 June 2023 estimated to take 4 weeks. This interlocutory dispute must be determined according to the applicable provisions of the Civil Procedure Act 2005 (NSW) ("CP Act"), and the associated Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). 3. The plaintiff, Mr Michael Hollingsworth, is an Aboriginal man and a former police officer who was discharged from the NSW Police Force in 2007 due to an accepted work-related post-traumatic stress disorder ("PTSD"). 4. It is undisputed that on 18 January 2018, a number of police officers with knowledge of the plaintiff's PTSD condition attended at his home and in the presence of his family, purportedly arrested and manhandled him, and took him into custody. He was released from custody five and-a-half hours later, without charge. Those events were distressing for the plaintiff. He claims those police officers acted unlawfully. 5. Consequently, in these proceedings the plaintiff claims damages for false imprisonment, assault and battery arising from the conduct of those police officers and other police officers at Wyong Police Station who were also involved in those events. The plaintiff claims that as a result of those events he has suffered an exacerbation of his pre-existing PTSD, along with a decline in his mental health. 6. The defendant, the State of New South Wales, which accepts vicarious responsibility for the actions of its police officers, has brought the present interlocutory application seeking to enforce on its terms the plaintiff's participation in a medico-legal interview with a forensic psychiatrist appointed by the defendant. 7. At all times the plaintiff has indicated his preparedness to attend such an examination but on the pre-condition that he is able to make an audio recording of the interview. The plaintiff has provided cogent sound reasons for that course but the defendant does not agree to the plaintiff's pre-condition. 8. The defendant filed its notice of motion on 17 October 2022. The application was heard on 23 and 24 February 2023. 9. In the paragraphs that follow, after setting out the details of the orders sought by the defendant, the evidence, my review of the evidence and the legal framework to be considered in determining the dispute raised in this application, and after summarising the submissions of the parties, I identify my reasons for dismissing with costs the defendant's notice of motion. For the assistance of the time poor reader, those reasons commence at paragraph [138] below. Orders sought by defendant 1. The orders originally sought by the defendant's notice of motion, filed on 17 October 2022, were as follows: "1. The plaintiff to attend an examination by Dr Lisa Brown (psychiatrist) pursuant to rule 23.4 of the Uniform Civil Procedure Rules 2005 (NSW): (a) in person; (b) with the option to bring a support person other than his spouse, adult child, lawyer or medicolegal practitioner; and (c) without recording the examination in any form. 2. The plaintiff to advise the State the name of any liability expert from which he intends to serve an expert opinion from no later than 5 days from the making of this order. 3. If the plaintiff fails to comply with order 2 the plaintiff is not permitted to relying on any additional expert liability evidence, other than that which has already been served. 4. That the plaintiff pay the State of New South Wales' costs of and incidental to this motion." 1. At the hearing of the motion the defendant abandoned its pursuit of proposed orders (2) and (3) with the result that it is no longer necessary to consider questions raised by the defendant relating to procedural timetables for the service of expert evidence. Plaintiff's claim 1. The plaintiff's statement of claim was filed on 18 January 2021. It relates to events on 18 January 2018. 2. The background to the plaintiff's claim is that in 2007, he was retired from his duties as a police officer on medical grounds due to PTSD. He incurred that illness in the course of his work as a police officer where he was exposed to a series of distressing events that do not require exposition in the context of this interlocutory application. 3. It is against that background the plaintiff claims that on 18 January 2018, he was wrongfully arrested and mistreated by a number of named police officers who came to his home with knowledge of his pre-existing PTSD condition. He claims he was subjected to an unpleasant and distressing period of false imprisonment lasting five and-a-half hours. Whilst detained he experienced significant fear and apprehension. In those events he was also subjected to assault and battery. Significant aspects of the factual basis for those allegations are not disputed by the defendant. 4. The plaintiff claims that the actions of those police officers, and the subsequent actions of other named police officers at Wyong Police Station, where he was taken and detained, has had, in the opinion of an eminent expert witness, the effect of materially and injuriously exacerbating his underlying PTSD condition. The defendant wishes to have the plaintiff examined by a forensic psychiatrist, presumably with the aim of testing if not contesting that opinion. 5. In these proceedings, on account of the described events, the plaintiff claims general compensatory damages, aggravated damages and exemplary damages from the defendant. Those claims are supported by the expert evidence served by the plaintiff. 6. Those claims are resisted by the defendant. However, the defendant does not yet have any contrary psychiatric opinion from a medico-legal expert of its choosing. There has been considerable delay in the defendant obtaining an examination with such an expert. The hearing of the substantive proceedings has been fixed to commence on 19 June 2023, with a hearing estimate of 4 weeks. That fixture was allocated on 30 May 2022. 7. This interlocutory application must therefore be determined with some urgency that cannot await the delays involved in a back-ordered transcript becoming available. Background and summary of outcome 1. The dispute between the parties as to the terms of a medical examination as is proposed by the defendant has its origins in some unusual circumstances whereby, on 22 February 2022, Dr Robert Apler (a forensic psychiatrist appointed by the defendant to examine the plaintiff for the purpose of preparing an evidentiary medical report for use in defending the substantive proceedings), terminated that interview after the plaintiff maintained his refusal to cease operating the recording function on his mobile telephone so as to record the interview despite Dr Apler's objection to that course. 2. There is no question over the lawful right of the plaintiff or Dr Apler to conduct themselves in the manner summarised in the preceding paragraph. The ultimate matter at issue in this interlocutory application is the reasonableness of the respective positions of the parties on the issue of an audio recording in the circumstances of this case. 3. At this point it is relevant to note, for reasons which will be identified, I am satisfied that due to the plaintiff's particular circumstances, including his PTSD condition, he had a reasonable historical basis for wanting to make an objective factual record of an interview with a psychiatrist appointed by the defendant. This relates to his anxiety and his earlier medico-legal experiences. He perceives that interview would or might be adversarial in its nature or conclusion. In those circumstances he wants an objective record of what was said for the benefit of all concerned. 4. Dr Apler's termination of his interview with the plaintiff is now only of background relevance as it has been overtaken by other events. 5. The particular dispute calling for decision in the present application arises in sharp focus because, on 23 August 2022, Dr Lisa Brown, another forensic psychiatrist appointed by the defendant in lieu of Dr Apler, also refused to interview the plaintiff in light of his insistence on having an audio recording of the proposed psychiatric interview. 6. The detailed reasons for the plaintiff wanting to record the interview, and the reasons for Dr Brown's refusing to interview the plaintiff in such circumstances, will be examined in the course of my review of the evidence and in my determination of the issue calling for decision. 7. However, before doing so, at this point it is convenient to identify a pivotal, and in my view, determinative question that arose during argument in the context of exploring Dr Brown's answers to a series of 8 questions which have been asked of her by the defendant's solicitor. 8. The defendant relied on Dr Brown's answers to those questions to support its position in the present interlocutory application. In the course of an examination of those questions during argument, a further question emerged which I considered to be of pivotal relevance. Dr Brown was asked to consider and answer that question. 9. That question suggested itself in light of Dr Brown's acknowledgment that she would be bound by the Code of Conduct for experts which forms part of the UCPR. The question also arose in light of a review of the plaintiff's apparently cogent and compelling reasons for wanting to make an audio recording of the defendant's psychiatric interview. 10. The substance of that further question was 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? 11. The defendant's legal representatives agreed to raise that question with Dr Brown and seek her response. It is common ground that Dr Brown's answer to that question, as relayed to the Court by the defendant's legal representatives, was a definite "No". 12. Essentially, in my view, those circumstances indicated that a fundamental procedural tension had arisen which, after analysis and after balancing the respective rights involved in accordance with the dictates of justice, required that the defendant's motion should be dismissed, with costs. 13. That view was exposed to the parties during argument in the course of exchanges during submissions. 14. As the hearing of the defendant's motion over the course of two days had taken much longer than the original half day estimate, the parties were asked whether in addition to those short reasons, they required further reasons for the dismissal of the motion as the extended hearing had gone over the estimate and had placed undue pressure on a busy list. 15. On instructions, counsel for the defendant requested those additional reasons, as was the defendant's right. For that purpose, judgment was then reserved. As was foreshadowed to the parties at that time, my reasons for dismissing the defendant's notice of motion filed on 17 October 2022 now follow. Evidence 1. Helpfully, the parties produced a court book which contained the defendant's notice of motion, the affidavits relied upon by the respective parties, and the detailed written submissions of the parties. 2. The defendant initially relied upon three affidavits affirmed by Ms Rebecca Gracie, solicitor, affirmed on 17 October 2022, and 14 and 22 February 2023. On 24 February 2023, that evidence was subsequently augmented by an affidavit from Ms Reanna Roberts, solicitor, affirmed on the second day of the hearing. 3. The plaintiff relied upon his own affidavit sworn on 10 February 2022, the report of Professor Alexander McFarlane, forensic psychiatrist, dated 26 July 2022, a report of Professor Neil Greenberg, forensic psychiatrist, dated 18 February 2023 (with an associated letter of instruction), and a report from Dr Toni Metelerkamp, the plaintiff's treating psychologist, dated 22 February 2023 (with an associated letter of instruction). Review of evidence 1. The evidence relied upon by the parties is reviewed below. The three affidavits of Ms Rebecca Gracie, with annexures 1. Ms Gracie's first affidavit outlined the origins of the present dispute as follows. 2. On 13 August 2021, the defendant notified the plaintiff's solicitor that the plaintiff was required to attend an appointment to be examined by Dr Alex Apler, a forensic psychiatrist. That examination ultimately did not proceed because Dr Apler terminated it on account of the plaintiff's insistence on their meeting being sound recorded on his mobile telephone. 3. Dr Apler's 25 October 2021 letter to the defendant's solicitor set the scene for the ensuing dispute, as follows: "I understand that Mr Hollingsworth would like to make an electronic record of the interview, I have never made an electronic record of my interviews, and I do not allow my interviewees to make electronic records either. I consider that the presence of electronic recording devices has the potential to adversely affect the interview. I make recordings using pen and paper, and the interviewees are welcome to similarly record the interview should they choose to do so." 1. There was some dispute which arose as to the ensuing correspondence. In light of the limited issues to be decided in the present application, it is no longer necessary to traverse those matters. 2. The end result was that on 22 February 2022, the plaintiff attended Dr Apler's rooms to be interviewed but Dr Apler terminated the interview because the plaintiff insisted that it be recorded. Dr Apler wrote to the defendant's solicitor about those events as follows: "Mr Hollingsworth came to the interview accompanied by his wife, and proceeded to record the interview on his phone as soon as he entered my office. I indicated that I do not digitally record my interviews and do not give permission for him to digitally record the interview either. He said that he noted my objections, but nevertheless continued to record, dictating his name into his phone and then giving it to his wife to do the same. I again explained that I do not give permission for him to digitally record the interview. I explained that I only record with pen and paper, and that I am happy to give writing materials to his wife to also record the interview with pen and paper, seeing as he intended for her to be present during the Interview. Mr Hollingsworth refused to allow his wife to record with pen and paper. He again insisted on recording the interview on his phone, and continued to do so. As he would not agree to stop recording, the interview was terminated. I am happy to assess Mr Hollingsworth with his wife recording with pen and paper, which is the same method of recording that I employ." 1. The impasse between the parties over the plaintiff's insistence in recording a psychiatric interview with the defendant's expert therefore remained unresolved. Ms Gracie's second affidavit related the events that then followed. 2. In light of the continuing impasse over the plaintiff's intention to record any psychiatric interview, and in light of Dr Apler's unavailability for a further appointment to examine the plaintiff in the short term, on 16 March 2022, the defendant's solicitor decided to make an alternative psychiatric appointment for the plaintiff to attend at a psychiatric examination on 23 August 2022 with Dr Lisa Brown, another forensic psychiatrist. 3. However, that appointment was cancelled in advance because, consistent with the plaintiff's previously stated and unchanged position, he maintained his insistence that he wanted to audio record the interview with Dr Brown. 4. On 15 November 2022, Dr Brown wrote a letter to the defendant's solicitor to set out her position for refusing to agree to the plaintiff making an audio recording of the proposed interview. 5. It is not entirely clear as to what alternative arrangements were sought or attempted to be negotiated, and with whom, in the 3 month period between August and November 2022. 6. In view of the issues raised by the defendant's motion, Dr Brown's letter is set out in full below, omitting formal parts: "With respect to the cancellation of an assessment regarding this plaintiff booked for 23 August 2022 I understand that Mr Hollingsworth declined to attend unless the assessment could be recorded. I am unwilling to agree to a recording on the basis of a number of concerns about effects on the interview itself, clinical effects on Mr Hollingsworth's psychological state and administrative/legal issues. Individuals who request recording of a medico-legal assessment usually have either a paranoid condition, arising from a mental illness such as psychosis or, alternatively, are affected by a high level of interpersonal sensitivity, secondary to previous trauma or underlying personality vulnerabilities. An insistence on recording the interview introduces a hostile element into the assessment and adversely effects the development of rapport. Developing rapport is extremely important as part of eliciting disclosure of personal details, a number of which may be relevant to a plaintiffs claim but which they may not wish to place on electronic record. There is an associated loss of opportunity to handle sensitive material during the discussion and to prepare a written report which accommodates information of this type. Recording introduces a formal aspect to the assessment and which is not conducive to frank disclosure. In addition to concerns about the changed nature of the interview process the possibility of clinical worsening arises if the claimant has access to the recording and listens to it repeatedly. This is particularly relevant for individuals who suffer from Post Traumatic Stress Disorder, given that the interview itself is often perceived as stressful whereas repeated exposure to the recording can have damaging psychological effects. An individual who has a high level of interpersonal sensitivity will often not accept the findings of a written report and an outcome of this type is more likely in the situation of having the opportunity to dissect a recording and to potentially take out of context words, phrases or sentences. In this regard, a recording lacks the nuances which contextualise the asking of questions, Including non-verbal cues and gestures. Valuable information associated with the interpretation of non-verbal aspects of the interview renders any recording an incomplete perspective of the assessment Once a recording is made available to a plaintiff the expert loses control over its ownership and to whom it may be disseminated. In the current cultural climate recordings may be uploaded to the internet and widely circulated on social media, potentially damaging the reputation of the expert who has no right of reply. I am both a treating psychiatrist and a psychiatric medical expert who has undertaken assessments and provided reports of this type for over 25 years. My approach to this type of request is to offer for a support person to attend the interview. An appropriate support person, who is not a close relative and who does not have a legal role in the matter, provides comfort and support to the interviewee. The plaintiff who attends with a trusted support person receives reassurance not only from their presence during the interview but also before and after the assessment. I decline to undertake an assessment of Mr Hollingsworth which is recorded because it will interfere and/or impede my assessment. I have attached two relevant articles, including the Royal Australian and New Zealand College of Psychiatry Guidelines for undertaking medico-legal assessments. The Guidelines note at 5.2.4 that psychiatrists are free to decline requests for recording of medico-legal assessments. The Guidelines at 5.27 indicate that psychiatrists should carefully consider the appropriateness of conducting such assessments in any specific case. An article which deals with the more common modern situation of covert recordings being made of assessments. The latter article nonetheless contains some pertinent concerns about the recording process, including the potential for either a sound recording or transcript to be interpreted out of context." 1. By way of clarification, the defendant's solicitor has confirmed that Dr Brown was not briefed with any letter of instruction which generated her letter dated 15 November 2022: Court Book, page 99. 2. This leads to the inference that in the 3 month period between August and November 2022, there must have been some form of verbal discussion between the defendant's representative and Dr Brown, or her secretary, which generated Dr Brown's lengthy letter as cited above. There was no file note in evidence regarding the content and direction of any such verbal discussion. The circumstances indicate a lack of transparency as to the process by which Dr Brown's letter was obtained. 3. Dr Brown's letter made reference to a published medico-legal article which she cited and annexed to her letter: 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. 4. In my view, that article was of limited relevance to resolving the present dispute because the context of the article concerned covert recordings in medico-legal interviews. The authors of that article expressed the view that a covert recording of a medico-legal interview by either a claimant or a consultant "indicates a lack of trust that may well contaminate the accuracy and reliability of any medical assessment … especially of a medico-legal assessment". 5. In my assessment, any concern along those lines may be disregarded in the analysis required in this instance as the course proposed by the plaintiff did not involve making a covert recording. In my view, Dr Brown's expressed concerns as stated in her letter dated 15 November 2022, were not materially supported by that particular article she cited. 6. Dr Brown's letter also cited for support of her position, paragraph 5.2.7 of Professional Guideline 11 issued by The Royal Australian & New Zealand College of Psychiatrists. That document was annexed to her letter. Relevantly, paragraph 5.2.7 of the guideline was in the following terms: "5.2.7 Assessments may be conducted by way of videoconference technology. On rare occasions, where no other means is available, telephone assessments (in the absence of video) may be conducted. Psychiatrists should carefully consider the appropriateness of conducting such assessments in any specific case. When such modes of assessment are used, that fact must be documented in the report, along with any technical issues that may have affected the quality of the assessment." 1. Plainly, by implication, by the terms of her stated refusal to agree to a recording, as was her right, Dr Brown considered that it would be inappropriate for a recording to be made of her interview of the plaintiff. 2. As a result, the impasse between the parties over the plaintiff's request for a recording that arose on 23 August 2022 continued for a further 6 months until the hearing of the defendant's present notice of motion. 3. This led to the filing of Ms Gracie's third affidavit. That affidavit, at paragraph 6, recounted the effect of a discussion held between the defendant's solicitor Ms Gracie, and Dr Brown, which was the day before the hearing which commenced on 22 February 2023. This was as follows: "6. At 9:21am on 22 February 2023, I spoke with Dr Lisa Brown. The contents of that conversation are detailed as follows: (a) I asked whether Dr Brown understood that her report dated 15 November 2022 would be used in the court proceedings. She responded that she did. (b) I asked whether Dr Brown was aware of the Expert Code of Conduct. She confirmed she was. (c) I asked whether Dr Brown prepared her report with the Code of Conduct in mind. She stated that she did. (d) I asked whether Dr Brown abides by that code of conduct. She confirmed she does. (e) I asked whether Dr Brown was in a position to read a 19-page report from Professor Greenberg, consider the same and provide a response to it by the end of today. (f) Dr Brown advised that she is currently on leave and does not officially return until 7 March 2023. The only work she is undertaking is seeing clinical patients with urgent issues. (g) Dr Brown advised that she may be able to read the report but would not be able to respond to it in writing. (h) I asked whether Dr Brown had any available appointments to examine Mr Hollingsworth. Dr Brown advised that technically her books are closed for the year but that she could accommodate this matter and examine Mr Hollingsworth and provide her report before she goes on leave on 7 May 2023. She then returns from leave on 3 June 2023." 1. There was no indication as to whether Dr Brown had in fact provided the defendant with any verbal or written commentary on Professor Greenberg's analysis, as was foreshadowed by sub-paragraph (e) of the preceding paragraph. The state of that evidence indicates insufficient transparency in the manner in which Dr Brown's commentary was obtained. 2. The lack of sufficient transparency identified in paragraph [50] above, and in the preceding paragraph is the characterisation of Dr Brown's letter. The defendant's solicitor incorrectly refers to the letter as being a report. The plaintiff contends, correctly in my view, that Dr Brown's letter is just that, and it is not an expert medical report within the meaning of UCPR r 31.27. Dr Brown's letter does not acknowledge the Code of Conduct for experts (r 31.23(3)) as would be expected in an expert report. 3. In my view, the 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, must be rejected. The letter should therefore be given little weight on matters in contention in the present application. 4. However, in deference to the defendant's arguments, the reasoning set out in Dr Brown's letter cited at paragraph [48] above warrants some contextual analysis. Whilst she gave her reasons for refusal to agree to a recording by the plaintiff, in my view, those reasons must be seen to involve hypothetical or theoretical considerations, which I consider should be given little if any weight. 5. As Dr Brown had never examined the plaintiff I do not take her expressed concerns to have a basis in factual reality with specific or particular reference to the plaintiff. She was not in a position to make reliable factual conclusions concerning the likely effects a recording might have on the plaintiff, let alone reliably speculate on the plaintiff's state of mind, including on the suggestions she raised, such as paranoia and the introduction of hostile elements into the assessment. In the absence of a sound factual foundation, I conclude that I must therefore significantly discount those generalised theoretical considerations. 6. It was in the course of examining Ms Gracie's account of her conversation with Dr Brown that the further question identified at paragraph [28] above emerged in discussion as a pivotal matter of relevance. 7. This led to the hearing of the defendant's motion being adjourned to the following day in order to enable the defendant to clarify that position. That clarification emerged from Dr Brown's answer to the question posed to her as was relayed by the defendant's solicitor, and from the content of the affidavit of Ms Roberts. Affidavit of Ms Reanna Roberts, with annexures 1. In her affidavit, Ms Roberts described her attempts to contact a total of 7 "suitably experienced" forensic psychiatrists chosen by the defendant. She identified those experts as Dr Antonella Ventura, Dr Doron Samuell, Dr Patricia Jungfer, Dr Alexy Sidorov, Dr Alice Neale, Dr Enrico Partigiani, and Dr Melissa Barrett. Her affidavit indicates that she had limited success in contacting the practitioner themselves. 2. Ms Roberts stated that the purpose of those attempts at contact was "to ascertain whether the each would agree to examine the plaintiff and permit that examination to be recorded, assuming there was a Court order that to do so was consistent with section (sic for clause) 5(c) of The Expert Witness Code." 3. None of those attempts at contact with those named alternative practitioners resulted in a positive response. The most detailed response was on behalf of Dr Barrett, through her secretary, who reportedly stated: (a) "Dr Barrett will not consent to the plaintiff recording a medico-legal examination, and this is a policy across the board." (b) "Psychiatrists will not allow for examinations to be recorded, as they are having conversations with an individual who has a mental health condition, and the recording of this conversation can impact the patient's mental health. This would not align with their duty of care." (c) "Dr Barrett informed me that she could not indicate any other psychiatrist that she knew of who would agree to comply with such an order." (d) "I refer you to section 7 of the Surveillance Devices Act 2007, which states that a private conversation can only be recorded if all of the principal parties to the conversation consent." 1. Given the context, those remarks should not be taken to represent the views of the entire community of forensic psychiatrists. 2. In the course of argument I was informed by Counsel for the plaintiff that a search of the RANZCP Register revealed that there were many College accredited expert forensic psychiatrists in Australia, of the order of 100 such specialists. In those circumstances, the limited number who were contacted could hardly be described as being representative of all of those specialists. 3. The critical unanswered question which suggests itself from the affidavit of Ms Roberts is what if any information was put to the employees of those 7 psychiatrists as to the plaintiff's psychological condition which might have a bearing on his insistence on making a recording of a medico-legal interview with a psychiatrist. Glaringly, that question remains unanswered. Affidavit of the plaintiff, Mr Michael Hollingsworth 1. Mr Hollingworth's 19 paragraph affidavit sworn on 10 February 2023 was instructive, reasonable in its terms, and it was highly relevant and persuasive to determining the dispute between the parties. 2. The examination of Mr Hollingsworth's affidavit must start with the uncontroversial premise that the defendant must take the plaintiff as he is found, especially including any pre-existing conditions of vulnerability that arise from his PTSD condition, and his related condition of anxiety: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18], p 406. 3. The starting point of that consideration is to note that not only does the plaintiff have PTSD but also, based on his prior experiences with that condition, he harbours an underlying lack of trust concerning adversarial medical assessments carried out for the State of NSW, including with regard to insurers acting in the interests of police. He stated that his experience of Dr Apler refusing to conduct the assessment on the appointed day was both surprising and upsetting to him. 4. The plaintiff has stated that he remains at all times ready willing, and able to attend medical examinations as required by the defendant on the condition that the assessment be audio recorded either by him or someone on his behalf, and that a copy of the recording be provided to both parties for use in the proceedings. 5. The plaintiff emphasised that he was being treated for chronic PTSD in a context where his symptoms of anxiety featured as an important part of his condition. He explained that when he feels anxious he finds it difficult to order his thoughts, listen attentively, recall what he wanted to say, and explain facts in a chronological sequence in an extended interview. 6. It is therefore unsurprising that the plaintiff would want to ensure that for the benefit of himself and his legal advisors there would be an accurate factual record kept of what was said in any psychiatric interview which was likely to have a material bearing on the presentation and the management of his case. 7. The plaintiff explained that he takes prescribed psychotropic medication and he has decreased cognitive ability and concentration both of which affect his ability to function and respond appropriately in any type of interview. He described himself as being hyper-alert. He has nightmares, and he is fatigued by a lack of sleep. He identified what I interpret from the context to be his fear of police. He fears he is unprotected by police. 8. Relevantly, at paragraphs 11 to 13 of his affidavit the plaintiff stated: "11. As a former police officer, I am very used to conducting recorded interviews (it is very normal to me) and I understand that audiovisual recording provides protection for both parties against misunderstanding and allegations of 'verballing' and is an important tool for accurately recording questions and answers. The protection of having a recorded interview makes me feel calmer about participating in an interview and I feel it will allow me to concentrate on the questions I am asked and give the most efficient and correct responses in the knowledge that if I do forget something that can be noted later and l can supply a correction if needs be. 12. Without the option to have the interview recorded, I believe I would be increasingly anxious before, during and after the interview worrying that I will make a mistake or that my words will be misinterpreted or incorrectly noted. I believe I will be able to give my lawyers some examples but not a full and accurate report of what is said or missed out of a long interview. I do not feel capable of taking sufficient handwritten or typed notes at the same time as the interview as I would feel rushed and distracted. 13. Thinking about participating in an interview that is not recorded makes me feel stressed, anxious and frustrated. I expect I will need to take Ativan medication before the interview to cope with the feelings (I expect my anxiety levels would "go through the roof") but that this may also adversely my participation. I feel like my disability is not being taken seriously." 1. The plaintiff's affidavit went on to factually describe some horrific historical incidents which led to him suffering PTSD in the course of his work: Affidavit paragraphs 7 – 11. He gave cogent reasons for having experienced a triggering of his stressful PTSD symptoms whilst he was on his way to seeing Dr Apler: Affidavit paragraph 6. 2. The plaintiff also cogently recounted how, in the context of his earlier "hurt on duty" claim, he had seen a number of psychologists or psychiatrists who, to his perception, had not fully or correctly reported information he had provided to them when they had assessed him, which in his view had resulted in them providing incomplete reports. 3. It was against this background, that the plaintiff's affidavit concluded with the following statements: "15. Learning that Dr Brown objects to having the interview recorded makes me more fearful and anxious about attending as I worry that I will not be able to give a full and proper account of my experiences and that I may be misunderstood or misreported. 16. Rather than being faced with the task of going through medical reports and recalling what was said to give my lawyers proper instructions, I would prefer that my lawyers could just refer to a recording to ensure anything legally relevant is addressed with the defendant and its doctors. 17. I have offered Dr Brown an undertaking that I will only use a recording for the purposes of my proceedings and will not otherwise use or disclose the recording publicly to embarrass her in some way. 18. If the phone recording is in some way technologically insufficient for Dr Brown I am happy to use other recording facilities. 1. In my opinion, the plaintiff's expressed concerns and his proffered undertakings are inherently reasonable given the circumstances he describes. Significantly, Dr Brown's letter dated 15 November 2022 does not refer to that undertaking and it makes no mention of why such an undertaking would not meet or ameliorate her expressed concerns. Report of Dr Toni Metelerkamp 1. Dr Toni Metelerkamp, the plaintiff's treating psychologist, issued an historical report dated 22 February 2023. The context of that report was to comment on Dr Brown's letter dated 15 November 2022 from the perspective of the plaintiff's treating psychologist who had the advantage of clinical exposure to the plaintiff's problems over the course of 31 sessions since August 2020. 2. Dr Metelerkamp critically questioned the concept articulated by Dr Brown that a recording of the assessment would impair or prevent a fair medical assessment. To the contrary, she pointed to the prospect that in her opinion, in the plaintiff's particular circumstances, a recording of such an assessment would increase his level of confidence that a fair assessment would take place. 3. On the basis of Dr Metelerkamp's clinical assessment of the plaintiff over time, she rejected Dr Brown's notion that the plaintiff might have a psychosis as a basis for him requesting a recording. Instead, Dr Metelerkamp identified a more reality-based rationale for the plaintiff's desire for a recorded interview, as follows: "Dr Alexander McFarlane's report dated 26 July 2021 describes the multiple instances where Mr Hollingsworth's trust in systems and due process has been damaged, resulting in 'an enduring sense of betrayal and a profound sense of injustice' (page 2). Mr Hollingsworth describes some previous independent medical assessment reports where relevant information he provided at assessment should reasonably have been included in the final report. Mr Hollingsworth indicated that his experiences had taught him that independent medical examiners are not accountable for the reports they produce. As a result, he has determined to only undergo assessment with some level of transparency and accountability, which he sees as possible only through recording assessments." 1. Furthermore, Dr Metelerkamp added: "Mr Hollingsworth will likely be more anxious, less frank and have difficulty establishing rapport if the assessor declines a request to record the assessment. Consequently, Mr Hollingsworth is less likely to have his PTSD symptoms triggered if assessed by an assessor willing to record the assessment, assuming agreed terms of use for the recording post-assessment." 1. In my assessment, the content of Dr Metelerkamp's cited commentary is an entirely reasonable one. Report of Professor Alexander McFarlane 1. On 26 July 2021, Professor Alexander McFarlane, an internationally recognised expert on the effects of traumatic stress, issued a 24 page detailed medico-legal report of his assessment of the plaintiff, which he undertook on 22 June 2021. 2. Professor McFarlane took a comprehensive history from the plaintiff which does not require a detailed review for present purposes other than to confirm the detail of the plaintiff's earlier diagnosis, and to record that the events of 18 January 2018, of which the plaintiff complains as having caused his PTSD, have become more significantly entrenched and relatively unresponsive to treatment. 3. Professor McFarlane went on to explain the disruptive effect on the plaintiff of the exacerbation of the plaintiff's condition resulting in progression of his PTSD and major depression. In that regard, he described the events of 18 January 2018 as having had a materially adverse impact on the plaintiff. 4. Those opinions, together with the opinions of other treating practitioners, some of whose reports are not in evidence in this limited interlocutory dispute (but which have been summarised by Professor McFarlane), indicate the plaintiff has a substantial claim to be litigated, and that he has a lot to be concerned about with regard to how his presentation will be interpreted and assessed by medical experts. 5. Professor McFarlane referred to a series of instances where the plaintiff's trust in systems and due process has been damaged, resulting in an enduring sense of betrayal and a profound sense of injustice. 6. I infer from those opinions and circumstances that the plaintiff has genuine anxieties and concerns over the need for him to make himself available for medical assessments in the adversarial setting such as in the present litigation, without the reassurance of an available factual record in the form of an audio recording as a protective reference resource for himself and his lawyers. Report of Professor Neil Greenberg 1. Professor Neil Greenberg is an eminent and well-qualified internationally renowned forensic psychiatrist. He provided an analytical report to the solicitor for the plaintiff that did not require him to assess the plaintiff. Essentially, his task was to analyse and comment upon the report of Professor McFarlane and on Dr Brown's letter dated 15 November 2022, specifically on the issue of the plaintiff making an audio recording of a consultation with her. 2. Professor Greenberg commenced his analysis of the assumptions provided to him, which were essentially as outlined in the plaintiff's affidavit with additional factual matters of relevance extracted from the report of Professor McFarlane and from material produced by other treating doctors. 3. Section 4 of Professor Greenberg's report focussed on Dr Brown's letter dated 15 November 2022. He noted Dr Brown's concerns as referred to at paragraph [48] above. These do not require repetition at this point. 4. Section 5 of Professor Greenberg's report identified his differing perspective to that of Dr Brown on the issue of recording consultations. He based his view on the guidance published by the British Medical Association on the subject of patients recording consultations. His commentary was as follows: "5.1. This states 'we encourage doctors to support patient requests to record their consultations. Although we encourage doctors to enable patients to take recordings, we understand some doctors may find it intrusive. They may feel that it undermines trust and changes the nature of the doctor-patient relationship. They may also be concerned that patients will use recordings for potential complaints or litigation. If you have concerns you should sensitively explore the reasons the patient wants to make the recording to allay any concerns you may have. Most people want to record consultations so that they can listen to them again when they have more time and are in a more relaxed setting, or so that they can share and discuss the information provided with family and/or friends. 5.2. We recognise that in exceptional circumstances, some patients may use recordings to pursue a complaint or a legal claim against a doctor. In our view, where doctors are acting professionally, they should have nothing to fear. Keeping clear and accurate records of clinically relevant information is a staple of good medical practice. Medical defence organisations suggest that where legal cases arise, most recordings actually support the actions of doctors.'" 1. Specifically, Professor Greenberg identified his disagreement with Dr Brown's position on the matter of audio recording of interviews in the following terms: "6.3. I note that Dr Brown objects to Mr Hollingsworth recording her interview with him on the basis of a. the effects on the interview itself; b. the clinical effects on Mr Hollingsworth's psychological state and c, administrative/legal issues. She notes that individuals who request recording medico-legal assessments usually either have a paranoid condition arising from a condition such as psychosis or are affected by a high level of interpersonal sensitivity, secondary to previous trauma or underlying personality vulnerabilities. I am unclear on what basis she forms this view. I have included some recent (2021) information from the British Medical Association does not suggest this is the case at all and I have not been able to find any recent relevant scientific publications2 which would support this view, in my experience of having a number of patients who have requested their interviews to be recorded, none were psychotic and none had paranoid personality traits that I identified. Some had. a past history of trauma but this did not appear to be directly relevant to their desire to record the interview.3 6.4. Dr Brown's view is that requesting a recording introduces a hostile element into the assessment which adversely affects the development of rapport. Once again, this Is not the view of the British Medical Association and nor is it my view. I note that one 2003 paper published in the Journal of the Royal Society of Medicine suggests that up to 80% of information provided by healthcare professionals is 'forgotten immediately'4. It is clear from the information I have seen that Mr Hollingsworth is worried about forgetting information discussed during a medicolegal assessment. In addition, his distrust of the police, and anyone he considers is associated with the police, is likely to mean that he will be distressed during a medicolegal assessment which is, in turn, likely to impair his ability to recall what he, or the assessing clinician, says. In my view, it is more likely that a clinician accepting that an interview can be recorded would improve rapport rather than adversely affect the development of it. 6.5. Dr Brown also notes that people who request recording an interview may be reluctant to disclose personal details; in my view this is a risk with any medicolegal assessment whether or not it is recorded. 6.6. Dr Brown also felt that recording may cause clinical deterioration if the Claimant listens to it repeatedly. She felt this was particularly relevant for people who have PTSD. Whilst this is a risk, given the strong distrust that Mr Hollingsworth has of the police and his concerns that he will not be treated fairly, it can equally be argued that not allowing him to record a medicolegal interview could also cause a clinical deterioration. However, what is clear to me is that Mr Hollingsworth is keen to record the interview to help him remember what was said and to help him subsequently discuss his case with his legal advisors; both of these desired outcomes are likely to reduce his distress rather than increase it. Additionally, if Dr Brown was concerned, perhaps on the basis of clinical information she has seen that I have not, about the risk of clinical deterioration, then she could mitigate that risk by writing about it to his treating clinicians or ask for Mr Hollingsworth to discuss the risk of deterioration with his treating clinicians and to then provide her with a letter confirming that he had done so. 6.7. Dr Brown also noted that people with a high level of interpersonal sensitivity will often not accept findings of a written report which would be more likely if they 'dissect a recording and to potentially take out of context words, phrases or sentences'. In my view, having an accurate record of what was, and was not, said is likely to help reduce misunderstandings rather than exaggerate them. 6.8. I also note that Dr Brown was concerned that once a recording is made, the expert loses control over its ownership and it might be uploaded to the internet and widely circulated on social media. However, I note that Mr Hollingsworth has given his assurance that any recording will only be for his personal use. 6.9. Overall, whilst noting Dr Brown's misgivings, and her right not to carry out a medico-legal assessment that is recorded if she does not want to, it is my view that recording a medico-legal psychiatric examination in this case would not impair or prevent a fair medical assessment. In fact, in my view given Mr Hollingsworth's strong desire to have the interview recorded, his clearly stated mistrust of the police and people he considers associated with them [which is very likely to include healthcare staff who are instructed to prepare reports by the NSWPF even though such professionals are required to express their independent view], and his reported poor concentration [which in turn infers that his memory will be poor] it is more likely than not that allowing him to record the interview would help, rather than hinder, him form a rapport with the assessing clinician which as Dr Brown notes is an important pre-requisite for an effective clinical interview." [References omitted] 1. Professor Greenberg referred to a journal article concerning the propensity for patients not to reliably recall all matters discussed in medical consultations: Kessels, RP; Patient's memory for medical information : Journal of the Royal Society for Medicine, May 2003, 96(5); 219-222. That citation has particular relevance to the plaintiff's PTSD condition, and the effect his PTSD condition has on his cognitive processes when stressed. It is therefore relevant to the consideration of whether the plaintiff should be permitted to record the proposed medico-legal assessment with the defendant's forensic psychiatrist. 2. I considered Professor Greenberg's analysis as summarised above to be both reasonable and compellingly persuasive. Legal framework for the decision 1. The resolution of the present dispute as to the terms on which the defendant's medical examination of the plaintiff should proceed requires 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. That resolution must be determined by appropriate reasons: House v The King (1936) 55 CLR 499; [1936] HCA 40. 2. In that regard, due recognition must be given to the overriding purpose to guide decisions so as to facilitate the just, quick and cheap resolution of the true matters in dispute between the parties: s 56 of the CP Act. Any decisions to be made on procedural matters must be according to the dictates of justice in the particular case: s 58 of the CP Act. 3. Non-exhaustively, s 58(2) of that Act identifies a number of considerations that are relevant to the exercise of the discretions conferred by the CP Act and the UCPR . Significant amongst those considerations is the litigation conduct of the parties and the likely prejudice to a party. In that regard, in this instance, it is significant that the defendant took no steps to seek an expedited hearing to obtain an earlier resolution of the impasse over the terms of the medical examination it required: s 58(2)(ii) and (v). 4. The relevant legislative provisions to be considered with regard to the medical examination of a party are UCPR r 23.4, r 23.5, and the previously cited provisions of the CP Act. 5. The relevant provisions governing the obligations of an appointed medical examiner include cl 5(c) of UCPR, Sch 7, this being the applicable Code of Conduct for experts, which requires, amongst other things, that an expert is obliged to act in conformity with directions issued by the Court. Submissions of the parties 1. The parties provided written submissions that were augmented by oral submissions. In my view, the essential points which arise, with comments, are summarised below. Defendant's submissions 1. The defendant submits that in this complex case, the plaintiff's refusal to attend the medico-legal psychiatric examination required by the defendant, without making a recording of the interview, has placed the defendant in "an impossible position", contrary to the interests of justice between the parties. 2. In my view, that submission involves elements of conflated overstatement for three reasons. 3. First, given the relative urgency, the defendant should have made an early application for expedited hearing of the present motion once the extent of the urgency of the issue became known. That issue should have been ventilated at a much earlier stage than has occurred to alert the Court of the urgency surrounding the issue. 4. Secondly, the plaintiff's insistence in having an audio recording of the interview is lawful. There must be good reasons for overriding the plaintiff's lawful entitlement. 5. Thirdly, the defendant has, on the material before me, only carried out a relatively narrow search for an expert having regard to the recording issue. That search only widened in the course of the hearing, and it is still incomplete. 6. In my view, the defendant's "impossible position" is largely one of its own making because of the failure to bring the issue to the Court for an earlier and more timely determination. This unfortunate timing should not cause prejudice to the plaintiff due to a possible delay in the commencement of hearing: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27. 7. Essentially, the defendant's position is that it has the right to choose its psychiatric expert to examine the plaintiff. That proposition is unquestionably correct but that right does not necessarily extend to imposing unreasonable terms that an insufficiently informed or instructed expert might require. Furthermore, that right must be subject to the chosen expert complying with the Code of Conduct for experts and any directions the Court might issue pursuant to that Code. 8. The defendant submitted, uncontroversially, that it is 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. 9. The area of debate is where the defendant asserts that right means the plaintiff must do all things reasonably requested of him including answering all questions reasonably asked of him by the appointed expert for the purposes of the examination so appointed: UCPR, r 23.4; s 56 of the CP Act. 10. Whilst that latter proposition is also unquestionably correct, its application should not have the effect of overriding the plaintiff's inherent lawful rights, including a request that he refrain from exercising his right to make a lawful recording where his legal rights are likely to be adversely impacted by the process in which he is called upon to participate, especially where he will be at a material disadvantage because of the state of his health, which requires that reasonable adjustment be made to accommodate his circumstances. In that regard, each case must be considered on its own merits. 11. The defendant's submissions fairly and correctly concede that ultimately, the Court must weigh up all of the relevant facts and circumstances to ensure that the proceedings are determined justly, taking into account the reasonable requirements of each party. Those submissions acknowledge that the interlocutory decision to be made in this instance must be made in accordance with the dictates of justice: s 58(2) of the CP Act. 12. The defendant relied upon the principles extracted from the decision in Prescott v Bulldog Tools Limited [1981] 3 AllER 869, at [875], where at paragraph (e), paraphrasing, it was held that any request for, and any refusal of a required step in litigation, must be objectively weighed and assessed for reasonableness by the exercise of discretion in order to make a just determination of the matter at issue. 13. In that case, it was further stated that where both opposing stances are determined to be reasonable, they must be balanced justly, where one right is not considered to be more important than the other right: Angliss v Urquhart [2001] NSWCA 441, at [13]-[16]; Crofts v The State of Qld [2001] QSC 220, at [25]. In my view, the defendant's delayed timing of the ventilation of this dispute serves to undermine the reasonableness of the defendant's position: s 58(2)(ii) of the CP Act.. 14. The defendant's submissions rely on three categories of reasoning in support of its position in seeking to require the plaintiff to be examined without an audio recording being made of the interview. Those categories reflect comments extracted from Dr Brown's letter dated 15 November 2022. 15. The first category is the argued effect of such a course on the plaintiff, the second is the effect of such a course on the clinical assessment, and the third is the effect of such a course on the clinician. In general terms, I accept that framework as being an appropriate guide to the analysis. 16. The defendant further argues what I interpret to be a lurking unfairness and danger in a recording of a forensic psychiatric interview being made, in that the plaintiff may distribute or use the recording for some nefarious or other purpose that is extraneous to the litigation. 17. In my view, that latter point should be disregarded in light of the procedural safeguards in place to ensure the proper handling of confidential material in the course of litigation: Harman v Secretary of State for the Home Department [1983] 1 AC 208, at 308 and that line of authority. 18. I also take that view on that point because the plaintiff's uncontradicted evidence indicates he knows the limits of use of the material created by the recording and he is prepared to give appropriate undertakings if required. The plaintiff's indications along those lines are entirely reasonable and rational. 19. There is no indication in the evidence to suggest that the plaintiff would act unlawfully so as to risk incurring a contempt finding should he misuse such a recording. The defendant's submission on this point is based on unsupported speculative considerations which should not be accepted without an acceptable basis founded upon cogent supporting evidence. 20. The remaining substantive elements of those arguments will be examined in my consideration and determination of the disputed issue after identifying the plaintiff's submissions. Plaintiff's submissions 1. The plaintiff submits that the orders the defendant seeks in this case go far beyond any approach previously taken by a court in relation to medical examinations on behalf of a party. The plaintiff submits that such a course is not supported by any application of principle. 2. That said, the fact that the orders sought by the defendant contain elements that are unprecedented does not of itself preclude the making of aspects of the orders sought, if considered to be justified. 3. The plaintiff opposes the orders sought in the defendant's notice of motion on the basis that such orders are unnecessary in circumstances where he has been at all times ready willing and able to attend a medical examination appointed by the defendant. In essence, he submits that the defendant seeks to unreasonably invoke the Court's power to abrogate his legal rights in a way that is extraordinary. 4. The plaintiff submits that, without just cause, the course proposed by the defendant will have the effect of restricting his access to legal communications, representation and advice in connection with the subject matter of the proceedings, contrary to his common law rights. There is considerable persuasive force to that argument in light of legislation and the guiding content of other educative resources to which I shall refer in due course. 5. In that regard, the plaintiff also submits that in the context of his identified psychological disability, where reasonable adjustments should be made to the defendant's requirements for medical examination of him by a psychiatrist, the orders sought by the defendant are unreasonable, and, if granted, would be discriminatory against him, and would prevent him from having a fair opportunity to have his disabilities assessed. 6. It was further argued that this would unreasonably hinder him in dealing with any adversarial issues that might emerge from any expert evidence that the defendant might choose to rely upon in opposing the plaintiff's substantive claim. This is a persuasive argument in the context of the plaintiff's conditions of anxiety, PTSD, and the disabling effect those conditions have on his recall and cognitive performance. 7. The plaintiff submitted that the Court should be astute to prevent unfairness to a litigant with a disability by reason of court processes, and will ensure that he is provided reasonable adjustments to accommodate his disability: Trauma-informed Courts Guidance for trauma-informed judicial practices Judicial Commission of NSW 2022, especially at pages 5-10, 15-16 and 22-25; Equality before the law Bench Book Judicial Commission of NSW 2022, sections 1.1, 1.3 and 5, especially at 5.2.4 and 5.2.5, and section 2. Those submissions are irresistibly persuasive. 8. The plaintiff further submitted that for such purposes, the Court may direct that any medical examination of the plaintiff that is the subject of an order made pursuant to UCPR r 23.4 be audio recorded. The plaintiff submits the Court should find that the plaintiff's request for such recording is reasonable and does not involve a relevant failure to comply with a notice for medical examination issued by the defendant pursuant to UCPR r 23.2, should the examiner refuse to permit the making of an audio recording. 9. The plaintiff also submitted, more broadly, that medical practitioners have a duty under the Disability Discrimination Act 1992 (Cwth) (s 24, s 5(1), s 6(1)) not to discriminate against an examinee such as the plaintiff by reason of the presence of a disability. 10. The plaintiff submitted that position should extend to a requirement under that Act for the examining practitioner to provide for reasonable accommodating adjustments to the examination process on account of disability: s 5(2) of that Act. 11. The plaintiff further submitted, uncontroversially, that a provision for the plaintiff to record the examination subject to undertakings of a safeguarding, such as the plaintiff has already offered in order to protect and assuage the concerns and interests of the expert, is a reasonable adjustment for a person with the plaintiff's identified disabilities and specific symptoms, even when viewed only on the more limited basis of an interlocutory application. Consideration and determination 1. I now turn to the consideration of those submissions in light of the evidence and the issues calling for decision. Dictates of justice to guide decisions 1. It must be accepted that any consideration and determination of the procedural orders sought by the defendant should proceed according to the dictates of justice: s 58(2) of the CP Act. This must occur with due regard to the subject matter of the litigation, with an appropriate level of recognition, with reasonable adjustments made for the plaintiff's psychological problems, in the context of his claim that those psychological problems have been exacerbated by the factual circumstances upon which the litigation is based. 2. In this case the dictates of justice must take into account applicable statutory provisions, procedural rules, and related provisions, including the obligations imposed on expert witnesses by the Code of Conduct for experts. Those provisions are designed to ensure fairness to all parties in litigation of the kind under present consideration. 3. In my view, any material non-adherence to those requirements would be contrary to the dictates of justice and would tend to give rise to oppression and unfairness especially to litigants suffering from the identified psychological conditions which adversely impact upon and impede mental functioning, as summarised at paragraphs [72] to [82] above, in relation to the plaintiff. 4. Sound justificatory reasons would be required before a court would make orders which depart from those rules and principles which are designed to ensure procedural fairness in contested litigation. 5. It is against that background that at the outset of the consideration, some elements of inherent unreasonableness arise from the orders sought by the defendant in this case. Inherently unreasonable orders sought by the defendant 1. Proposed Order (1)(b) of the defendant's notice of motion invokes UCPR, r 23.4 to seek to abrogate the plaintiff's fundamental right to have a medico-legal expert of his choice attend an examination required by the defendant. 2. In my view, that element of the defendant's requirement must be seen to be inherently unreasonable as it is contrary to the plaintiff's unassailable right to have a medical expert of his choice attend at any examination required by the defendant: UCPR r 23.5. 3. The defendant has not proffered any justification for its extraordinary proposal to exclude the plaintiff from exercising that undeniable right. 4. In this case I would need to be persuaded by cogent evidence before making an order which overrides that right. The defendant has not identified any evidence which would justify the making of an order that abrogates that right of the plaintiff as conferred by UCPR r 23.5. This aspect of the order sought by the defendant is offensive to the dictates of justice. 5. Furthermore, the requirement sought by the defendant by proposed order (1)(c) that the examination of the plaintiff by its appointed expert take place "without recording the examination in any form" must also be seen to be an unacceptable limitation on the plaintiff's rights. 6. If implemented, the effect of such an order would prevent the plaintiff from exercising his right to make a written record by making his own notes, if he was able to do so, either during or after the examination. 7. Proposed Orders (1)(b) and (1)(c) of the defendant's notice of motion must therefore be rejected as being unfair, unreasonable, and therefore unacceptable when viewed from the perspective of the dictates of justice. Support person taking notes is not an appropriate solution 1. In my view, the defendant's suggestion that a non-professional support person, a non-relative, who would necessarily be an unskilled stranger to the litigation, be present at the interview to take notes is problematic. 2. That suggestion would not be an appropriate solution to allay the plaintiff's concerns. It could foreseeably hinder the process of disclosure and description where sensitive personal matters are to be raised and explored by the examining psychiatrist. In my view, the presence of an unskilled stranger would be very likely to hinder and inhibit the process which could foreseeably lead to an unsatisfactory outcome for all concerned. 3. In that sense, the defendant's suggestion for the presence of a support person would be contrary to the dictates of justice. In my view, such a presence would be inappropriate and I decline to make an order along those lines. 4. Those conclusions lead to a consideration of the reasonableness of the plaintiff's insistence on making an audio recording at the proposed psychiatric examination. Reasonableness of plaintiff's request for recording 1. In this case the plaintiff has indicated that at all times he has agreed to submit to a medical examination appointed by the defendant, subject to the condition that he is able to make an audio recording of the interview. 2. There is no indication from within the evidence to suggest that the plaintiff might misuse such a recording. He is even prepared to give appropriate undertakings in that regard on the evidence, I consider his indications along those lines to be reasonable. 3. As identified at paragraphs [72] to [81] above, consequent upon the plaintiff's prior unsettling experiences associated with his medical retirement from the police force, he has been sensitised to the medico-legal process as a result of which he harbours a lack of trust in adversarial medico-legal assessments. In my view, the dictates of justice require that this circumstance of the plaintiff needs to be accommodated. 4. That lack of trust serves to heighten the plaintiff's anxiety, which in turn causes him cognitive difficulty in organising his thoughts, concentrating, and explaining his situation. The unchallenged evidence of the plaintiff suggests that such problems are likely to become manifest in a psychiatric assessment appointed at the request of the defendant in this case. Those circumstances require that appropriate reasonable adjustments be made to accommodate the plaintiff's disabilities. 5. The defendant's psychiatric examination of the plaintiff would be expected to traverse the detailed complexity of the factual circumstances that led to the plaintiff's retirement in 2007, as well as the details of the events that have given rise to the plaintiff's present claim against the defendant. 6. Given the upsetting effects those events have had on the plaintiff's psychological functioning, it is reasonably foreseeable that he would become anxious about being questioned by a psychiatrist in the medico-legal setting where the examiner would be seeking to explore those matters in order to form opinions on questions of diagnosis, prognosis, and causation. 7. In those circumstances, where the examining psychiatrist would be expected to provide an evidentiary medical report containing reasoned opinions on those matters, it would be in the interests of all parties to have an accurate record of what was asked of the plaintiff and what was said by him at the underlying interview, where those matters would necessarily form the basis for any such opinions. 8. This is so especially where, in personal injury litigation in this Court, experience shows that disputes commonly occur as to the factual basis for the opinions expressed by medico-legal experts, and especially where such evidence needs to be evaluated for acceptability by reference to the underlying reasons: UCPR r 31.27(1)(c); Sch 7, cl 5(c); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21. 9. In such circumstances, an objective record of the interview in the form of a faithfully accurate recording of the details of the matters discussed, whether transcribed or not, would be an important and reliable reference resource that would significantly reduce, if not, eliminate, the scope for factual disputes based on possible misperceptions as to what was asked of the plaintiff or said by him at the underlying medical examination. In that sense, such a record would irrefutably serve the dictates of justice: s 58(2) of the CP Act. 10. A recording would have the advantage of superior accuracy compared to summarised note taking. It would therefore serve the interests of all parties equally. 11. In my view, it would be unreasonable to expect the plaintiff to achieve and maintain proficient note taking whilst concentrating on listening to questions and providing appropriate answers. Note taking by the plaintiff would most likely be distracting to him in such circumstances. As such, on the evidence, it would most likely have the tendency to hinder the flow of the interview, and also needlessly prolong the process. Equality before the law 1. As was pointed out on behalf of the plaintiff, the Judicial Commission of NSW publishes materials to assist the work of Courts. Section 5 of the Civil Trials Bench Book deals with the needs of people with disabilities. 2. The cited portion of the Civil Trials Bench Book refers to disabilities as referred to in s 4 of the Anti-Discrimination Act 1977 (NSW) which identifies disability as "a disorder, illness or disease that affects a person's thought processes … (and) emotions". This resource also refers to psychiatric disabilities which give rise to impairments. 3. In these more enlightened times, as is confirmed by the cited content of the Civil Trials Bench Book, courts increasingly recognise the importance of considering the need to ensure that appropriate allowance be made for persons with mental health conditions, which includes psychiatric conditions. This would also include episodic disabilities involving cognitive issues and anxiety that might affect the ability of a person to interact in relation to court proceedings: Section 5.2.1 and 5.2.2.6. 4. In my view, the foregoing statements should be taken to also apply to steps taken by parties and their professional nominees such as medico-legal experts involved in the preparatory stages of litigation at the request of a party. 5. In my view, those considerations should be read as extending to orders made by courts when providing for the medical examination of litigants, including by making allowances for reasonable adjustments that ensure fairness where disadvantage is known to exist due to disability. Trauma-informed approach to litigation 1. The introduction to the NSW Judicial Commission's series of e-resources contains the following statement of acknowledgment of the effects of trauma in a litigation context, at p 5: "Introduction Many courts have come to recognise that acknowledging and understanding the impact of trauma on court participants may lead to more successful interactions and outcomes. Courts that do not practice trauma-informed decision making may inadvertently increase the level of trauma that [people] experience. Every interaction is an opportunity. Trauma is highly prevalent in the community. It may be safely concluded that many court participants are trauma survivors and may continue to experience trauma to varying degrees. ... The very nature of legal proceedings, both civil and criminal, has the potential for severe stress for those involved. Further, there is a growing understanding of the prevalence and impact of trauma ..." [References omitted] 1. Trauma is taken to include a wide range of consequential mental health disabilities, such as PTSD and anxiety disorders. Those resources cite the significant statistical prevalence of various types of mental conditions and disability in the community. 2. As the plaintiff is affected by such problems, and those problems are the very subject matter of the litigation, it is only just that reasonable and proper adjustment steps be taken in the course of this litigation, including in its component stages, to accommodate a trauma informed approach. 3. In that context, the plaintiff's evidence, and that of Dr Metelerkamp, Professor McFarlane and Professor Greenberg, persuade me that the proposed sound recording of the defendant's proposed psychiatric examination is an appropriate trauma informed approach in this case. Nothing that has emerged from Dr Brown's letter or the subsequent account of the conversation she had with the defendant's solicitor on 22 February 2023 provides persuasive material to the contrary. Anti-discrimination legislation 1. In considering the dictates of justice in the determination of the present dispute, due regard must also be had to relevant provisions in anti-discrimination legislation. 2. In my view, a requirement that the plaintiff, with his described PTSD-related cognitive impairments, submit himself to a psychiatric examination without recourse to the reassuring comfort of a reliable objective record of the factual matters canvassed at that examination, would be contrary to the dictates of justice. Such a requirement is likely to cause the plaintiff material disadvantage which would in my view, at the very least, amount to "indirect discrimination" within the meaning of s 5(1)(c) of the Disability Discrimination Act 1992 (Cwth). 3. In this case, the defendant has the burden of proving the reasonableness of its requirement that the plaintiff make no audio recording at the proposed psychiatric assessment: s 5(3) and s 5(4) of that Act. 4. In my view, absent acceptable justification, it would be discriminatory of the defendant, and for any medical practitioner appointed by the defendant, to refuse to make "reasonable adjustments" to the requirement for the plaintiff to submit to an examination which would have the effect of "disadvantaging" the plaintiff as an examinee: s 5(2) of that Act. The only legitimate basis for an exemption would be if the requirement for adjustment would cause "unjustifiable hardship": s 11 and s 1 of that Act. In my view, in the plaintiff's circumstances, a reasonable adjustment would include the provision for making an audio recording as he suggests. 5. It would be unlawful for a medical practitioner to discriminate against a person such as the plaintiff on the ground of his disability: s 24(1) of that Act. This is so where "disability" is defined as including "an illness that affects a person's thought processes … (and) emotions": s 1 of that Act. 6. The defendant, and by extension, the examining medical practitioner, must discharge the burden of proving the existence of an "unjustifiable hardship" in order to be relieved of the burden of making reasonable adjustments to the interview process on account of the plaintiff's disability: s 11 of that Act. 7. The defendant has not demonstrated that an examining forensic psychiatrist would, in the medico-legal setting, experience an unjustifiable hardship if there were to be a requirement that the interview in question be the subject of an audio recording by the plaintiff. On the evidence, it is plain that the plaintiff intends to be responsible for the implementation of the recording. This would not operate as a burden on the medical examiner. 8. On the contrary, if anything, such a recording would be more likely to relieve the examiner of the burden of more intense or detailed note taking, thus promoting and enhancing the flow of exploratory discussions through questions and answers, as occurs in court, where the proceedings are sound recorded in an accessible form to the advantage of all concerned. 9. It is difficult to see how the sound recording of a forensic psychiatrist's interview with the plaintiff would cause "unjustifiable hardship" to either the examining psychiatrist or the defendant. 10. The anti-discrimination objects of the Act in question include ensuring that, as far as practicable, persons with disabilities have the same fundamental rights to equality before the law as the rest of the community: s 3 of that Act. Those objects apply to the provision of professional services which are not defined or defined in a materially limited or exhaustive way: s 4 of that Act. I construe those objects to apply to the provision of medico-legal services by an examining forensic psychiatrist. 11. All expert witnesses who acknowledge adherence to the Code of Conduct for experts must expect to be required to give explanatory evidence in Court at least occasionally. When this occurs, sound recording invariably proceeds in the background. I remain unconvinced that in the less formal setting of a medical assessment involving just conversation, the clinical acumen and concentration powers of an expert forensic psychiatrist would be distracted or inhibited from asking, or exploring, questions that arise to be considered as a prelude to forming opinions to be included in an expert report. 12. Courts and forensic psychiatric experts are accustomed to seeing and hearing electronic recordings of structured interviews. I find myself unable to accept an assertion based only on Dr Brown's letter dated 15 November 2022 that a recording in the clinical assessment setting would introduce a hostile and therefore distracting element into the process. Similarly, I am not persuaded that an expert with the clinical acumen of a forensic psychiatrist would find that an audio recording would "interfere and / or impede" the required assessment. In this case, I find such expressed concerns are speculative in nature. They should not be determinative on the issue to be decided. 13. All of these considerations, including a trauma-informed approach as referenced above, ought to have been within the knowledge and understanding of a model litigant such as the defendant and its legal advisors when considering the preparation requirements of a case such as this, including when arranging medico-legal examinations of the kind under present consideration. The differing opinions of the experts 1. At paragraphs [46] to [62] above, I have reviewed the content of Dr Brown's letter dated 15 November 2022 in which she sets out her views as to why an audio recording of a psychiatric interview with the plaintiff would be contra-indicated. 2. Dr Brown has, based on her misgivings, declined to interview and assess the plaintiff if the session is recorded. Her reason for doing so is summed up by her statement "because it will interfere and / or impede my assessment". She has not supported that stance by any cogent reason that actually relates to the plaintiff. In my view, her statement lacks the reasoned rigour required by UCPR r 31.27(1)(c) and UCPR, Sch 7, cl 5(c). 3. Having concluded that Dr Brown's letter dated 15 November 2022 is based on speculative concerns that have no foundation in the evidence, I conclude that those concerns must therefore be discounted in determining the respective rights and entitlements of the parties in the present dispute. 4. At paragraphs [83] to [87] above, I have assessed Dr Metelerkamp's commentary in support of audio recording to be entirely reasonable. Her commentary is based on her considerable advantage of her extensive clinical contact with the plaintiff over the course of time in the context of treatment. Her opinions have a sound factual basis and I have accepted the reasonableness of her position in supporting the plaintiff's request for a recording to be made. 5. At paragraphs [88] to [93] above, I have reviewed and accepted the opinions of Professor McFarlane as to his impressions on how the adversarial nature of the medico-legal process has caused the plaintiff to have trust issues which have caused him to harbour a profound sense of injustice. In my view, the plaintiff's "entrenched" PTSD and its manifestations as described by Professor McFarlane, must be accommodated in the arrangements for adversarially-based medico-legal examinations in this case. That course is consistent with an enlightened trauma-informed approach to managing litigation involving psychological injury. 6. At paragraphs [94] to [99] above, I have reviewed Professor Greenberg's opinion on the position identified in Dr Brown's letter dated 15 November 2022. 7. In my view, Professor Greenberg's commentary on Dr Brown's expressed concerns is both rational and convincing. In that commentary, having identified and considered Dr Brown's concerns, he has comprehensively identified sound reasons why they should be discounted in this case. 8. In summary, his reasons, as cited at paragraphs [97] to [98] above identify: 1. the sensible need to sensitively explore the concerns of the examinee for wanting a recording. Dr Brown was not in a position to do so when she formulated her letter expressing her unwillingness to interview the plaintiff if the session was recorded; 2. the exceptional circumstances where an examinee may use a recording to make a complaint. He identified the obvious response, namely, that if examiners act professionally, they should have nothing to fear from a recording, and if any such rare instances arise, a recording would more likely be supportive of the examiner in the event of a complaint; 3. sound reasons to discount Dr Brown's generalised concerns over issues concerning the personality of the interviewee, such as possible paranoia, hostility, mistrust and impaired rapport. Instead, he identifies the prospect that a recording would more likely assist the process rather than hinder the establishment of rapport with the examinee. 1. I consider Professor Greenberg's commentary to be comprehensive and compellingly persuasive. 2. I therefore conclude that on account of the cogency of the reasoned content, Professor Greenberg's views, and those of Dr Metelerkamp, as supported and informed by foundation facts outlined by Professor McFarlane, Professor Greenberg's views, should be preferred to the unduly speculative views expressed by Dr Brown. Consideration of the defendant's position on the issue 1. There is 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. 2. The evidence does not demonstrate that the plaintiff's request for a recording to be made of a psychiatric interview convened at the defendant's request would of itself be burdensome on the defendant. 3. On the contrary, I consider that the defendant would be benefitted by having a factually accurate record of what took place at the psychiatric interview. This could only assist and not derogate from the dictates of justice: s 58(2) of the CP Act. 4. In my view, 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. 5. In my view, 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. 6. That burden is an inherent feature of defending a personal injury claim and it should not be seen to be extraordinary. It is why preparatory conduct in litigation should be undertaken in a timely manner. 7. The defendant's argument against the plaintiff making an audio recording of any interview with the defendant's psychiatrist is based on the perceptions identified in the correspondence provided by Dr Brown and Dr Apler. I consider those perceptions and misgivings to be ill-founded. 8. I do not accept them to be a valid basis for refusing to permit the plaintiff to record the content of the questions asked of him and his answers at the psychiatric interview required by the defendant. 9. I do not accept the defendant's argued proposition that an expert forensic psychiatrist would be adversely affected or inhibited from exercising professional acumen in formulating and exploring questions during a psychiatric interview with the plaintiff simply because the interview was being audio recorded. 10. Experts give their evidence on sensitive matters in court knowing what they say will be recorded. If anything, knowledge that the proceedings are being recorded is an aid to concentration, and would tend to promote rigour. The advantage of an accurate record is self-evident. 11. 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 for experts as to how an important aspect of a medico-legal examination should proceed, where the dictates of justice require that such a direction should be given to an expert. Balancing the respective rights 1. In considering the present application by the defendant seeking to restrict the plaintiff's rights, the relevant balance to be struck is 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. 2. The plaintiff does not dispute the defendant's right to have such an assessment. The dispute is over whether that assessment should be audio recorded. 3. In defining and balancing those rights, for the reasons already identified above, in considering the issues raised, I am satisfied as to the reasonableness of the plaintiff's stance in seeking to have a lawfully made audio recording of a proposed interview with any forensic psychiatrist to be appointed by the defendant. 4. For the same reasons, I am similarly satisfied that the reasonableness of the stance taken by the plaintiff should be reflected in an appropriate direction to be given pursuant to cl 5(c) of Sch 7 of the UCPR, to any forensic psychiatrist engaged by the defendant to examine the plaintiff pursuant to UCPR r 23.2, to enable a recording to be made. 5. In reaching those conclusions I have had regard to the conflicting medical views upon which the parties have based their respective stances on the audio recording issue. 6. As is required, I have wrestled and grappled with the differing views of Dr Brown on the one hand, and the opposing views of Dr Metelerkamp and Professor Greenberg on the other: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, at [28]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [66]. 7. The latter views were informed by the clinical assessments made by both Dr Metelerkamp and Professor McFarlane. For the reasons identified at paragraphs [188] – [197] above, I have preferred the more cogently expressed and informed explanations provided by Professor Greenberg and Dr Metelerkamp to those of Dr Brown. 8. Dr Brown's unwillingness to examine the plaintiff if the assessment session was to be audio recorded was based on the proposition that in her view such a course would interfere with or impede the assessment. Her concern in that regard was based on her misgivings and perceptions that a recording might have adverse impact on the process of the interview, and on the plaintiff's psychological state, and would cause administrative and legal issues. 9. For the reasons already identified, I have found Dr Brown's concerns to be speculative. I have found they have been convincingly dispelled and rebutted by the combined effect of the evidence of the plaintiff, Dr Metelerkamp and Professor Greenberg. 10. As already identified, Dr Brown's misgivings which have led to her refusal to assess the plaintiff on his terms, do not align with the dictates of justice, which otherwise indicate the reasonableness of the plaintiff's requirement of an appropriate adjustment to enable a recording to be made of the proposed assessment session. The plaintiff's requirement for a recording is reasonably based on his legitimate concerns that arise from his psychological condition, which is the subject matter of this litigation. 11. When examined for its basis, the defendant's concern over the effect of a recording on the plaintiff's psychological condition, is founded upon unsupported speculation. I have accepted the contrary analysis of Professor Greenberg and Dr Metelerkamp in that regard. In my view, the possible adverse effect on the plaintiff's psychological condition due to the absence of a recording outweighs any such considerations raised by the defendant: s 58(2)(vi) of the CP Act. 12. The defendant's concern over the effect that a recording might have on the course of a clinical assessment of the plaintiff, and questions of rapport between interviewer and subject, have been convincingly dispelled in the commentary provided by Professor Greenberg. 13. The defendant's concern over the possible effect a recording might have on the clinician which might hinder the process by either distraction or inhibition are based on unfounded speculation. There is no reliable evidence upon which to base a realistic concern over the plaintiff's possible misuse of a recording. In my view, those concerns are hypothetical and unpersuasive. 14. The expectation of the Court in cases such as this is that an expert witness who agrees to be bound by the UCPR Code of Conduct for experts would make an appropriate adjustment to the interviewing arrangements to permit an audio recording to be made of the assessment session where there are cogent reasons for doing so. 15. In this case, the plaintiff has demonstrated the justification for such a course. He has also shown a willingness to assume the task of making the recording by using his mobile telephone. His preparedness in that regard would have the tendency to relieve the examiner of the burden of making the recording. 16. The transparency and rigour provided by an audio recording would result in superior historical accuracy when compared to any summarised file note in the event of a dispute as to what was either asked or said in that session. 17. It is difficult to accept that a forensic psychiatrist would be distracted, impeded, inhibited, or somehow intimidated by a recording being made of the assessment session. In my view, the converse is true because a recording would lessen the burden on the examiner to take more intensely detailed notes. 18. The benefits of modern technology would enable a copy of the recording to be provided to the examiner immediately after the session if the examiner so required, assuming that the examiner had not similarly recorded the session with the plaintiff's consent. 19. In this case there is no persuasive basis for concluding the plaintiff would misuse the recording by seeking to embarrass the examiner, for example, by uploading it onto the internet as was suggested by the defendant. The litigation process provides punitive protection against such a course. 20. In these circumstances, I conclude that a person engaged as an expert witness who declines to be bound by a direction issued by the Court pursuant to cl 5(c) of Sch 7 of the UCPR is, by definition, not a suitable expert for the purpose of providing expert evidence in this case. 21. In this case the defendant has made a series of late stage, limited, non-exhaustive, but nevertheless fruitless inquiries of potential expert witnesses to see if they are prepared to abide by directions to be issued pursuant to the Code of Conduct for expert witnesses: UCPR, Sch 7, cl 5(c). 22. On the state of the evidence, on balance, I am not persuaded that the plaintiff's right to make a recording should be abrogated or limited in order 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. 23. In my view, the evidence and arguments put forward by the defendant do not tip the balance in favour of granting the relief sought by the defendant in this notice of motion. 24. Although it was submitted there were no authoritative decisions of guidance on the point raised for decision in this motion, the plaintiff drew attention to a useful decision of the New South Wales Civil Administrative Tribunal in the Appeal Division. In that case, consideration was given to the process of video recording of a psychiatric examination where the rejection of an objection to that process was confirmed. In that case, a video recording of a medical examination was found to be to a degree analogous with the process of police interviews of suspects. Further, it was held that there is an advantage in having the full details of the examination or interview available in order to avoid disputes: Commissioner of Police, NSW Police Force v Robinson [2022] NSWCATAP 121, at [100]-[114]. 25. I respectfully agree with the reasoning and the conclusions stated in that case. In my view, those conclusions should also apply to the proposed audio recording required by the plaintiff in this case. In my view, all parties, including the examining forensic psychiatrist, would be best served, as would be the dictates of justice, if a reliable sound recording were to be made of an assessment of the plaintiff with a psychiatrist appointed by the defendant. 26. This would limit the scope for potential factual disputes which, if they arose, would have the effect of causing the plaintiff needless added distress on top of his existing PTSD condition. Direction to be made pursuant to UCPR Sch 7, cl 5(c) 1. Accordingly, I conclude that the combination of the plaintiff's anxiety about the examination process based on his experience-based mistrust of that process, the likely nature and extent of the psychiatric questioning at the proposed examination, and the need for factual accuracy and rigour in the ultimate evidentiary assessment-based opinion required in resolving the substantive issues in the litigation, demonstrates the inherent reasonableness of the plaintiff's request that there be an audio recording made of his proposed interview with a forensic psychiatrist appointed by the defendant. I will make a direction to that effect. 2. In view of Dr Brown's indication that she would not conform to such a direction, it would be inappropriate to require the plaintiff to attend a proposed examination by her unless she relented on her earlier expressed refusal. Defendant to nominate an alternative expert 1. If the defendant maintains its requirement that the plaintiff be examined by a forensic psychiatrist, it must now find an alternative forensic psychiatrist who is prepared to comply with a direction issued pursuant to cl 5(c) of the Code of Conduct for experts. Alternatively, the defendant may be able to persuade Dr Brown to change her position of refusal on this question. Conclusion 1. I conclude that the defendant has been unable to justify the orders that it seeks in its notice of motion filed on 17 October 2022. Costs 1. The ordinary consequence of a dismissal of the defendant's notice of motion must be that the defendant should pay the plaintiff's costs incurred in resisting the orders sought in that motion. For the reasons outlined above the plaintiff is entitled to such an order in this instance. Case management considerations 1. Some case management issues have emerged from this interlocutory application, as follows. Mediation 1. During the exploration of the issues at the hearing of the motion it became apparent that there has been no prior attempt by the parties to pursue alternative dispute resolution procedures in what is undoubtedly a complex case that will involve the parties in significant expense, including the prospect of tying up extensive public resources, including involvement of many police witnesses. 2. In light of those circumstances, and in light of an impending lengthy four week trial, and having regard to the extensive costs likely to be incurred by the parties in such a trial, an order was made pursuant to s 26 of the CP Act appointing a suitable mediator and requiring the parties to conclude a mediation of the substantive proceedings by 31 May 2023. 3. At the time that order was made the parties were reminded that such an order could be made at any stage of the proceedings, whatever the state of the expert evidence. It seemed to me that such an order was mandated on the facts and circumstances as revealed in this case according to the dictates of justice: s 56 of the CP Act. Smyth order 1. It is plain that this litigation will involve the parties in considerable expense and as the trial approaches that expense is likely to significantly burgeon. In my view, the dictates of justice require that the further conduct of the parties be undertaken in light of a true understanding of the likely cost of the continuation of the case to its conclusion, one way or the other. 2. Accordingly, and as a contextual aid to the mediation order that has already been made I will make an order for timely compliance with what is known as a Smyth order pursuant to UCPR r 42.32. That provision provides as follows: 42.32 Smyth orders At any stage of proceedings, the court may order a party's legal representative to serve on the party— (a) a notice that specifies— (i) an estimate of the largest amount (inclusive of costs) for which judgment is likely to be given if the party is successful, and (ii) an estimate of the largest amount (by way of costs) that the party may be ordered to pay if the party is unsuccessful, or (b) a notice that specifies— (i) an estimate of the best outcome that the party is likely to achieve if the party is successful, and (ii) an estimate of the worst outcome that the party is likely to undergo if the party is unsuccessful. 1. In my view, that order should be complied with as soon as is practicable. Orders 1. I make the following orders: 1. The defendant's notice of motion filed on 17 October 2022 pursuant to UCPR r 23.4, 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 psychiatric expert 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. ********** Amendments 07 March 2023 - Table of contents : heading "Balance the respective rights" to "Balancing ..." Paragraph [238] : "not" removed from the sentence. 07 March 2023 - Paragraph [84]: Dr Metelerkamp referred to as "he" is changed to "she" and "his" to "her" Paragraph [85] : Dr Metelerkamp referred to as "he" is changed to "she" Paragraph [119] : "serve" is replaced with "serves" Paragraph [191] : Dr Metelerkamp referred to as "his" is changed to "her" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 March 2023