Chopra v State of NSW (South Western Sydney Local Health District) [2023] NSWCA 142

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chopra v State of NSW (South Western Sydney Local Health District) [2023] NSWCA 142 Hearing dates: 6 June 2023 Date of orders: 27 June 2023 Decision date: 27 June 2023 Before: Mitchelmore JA at [1] Kirk JA at [54] Simpson AJA at [55] Decision: (1) Pursuant to rule 51.10 of the Uniform Civil Procedure Rules 2005 (NSW), grant an extension of time to the applicant to file the Summons Seeking Leave to Appeal dated 10 February 2023. (2) Grant leave to appeal. (3) Dispense with the requirement for the applicant to file and serve a notice of appeal in accordance with the draft notice of appeal. (4) Appeal allowed. (5) Set aside each of orders 2, 3, 4, 5, 7 and 8 of Gibb DCJ dated 15 December 2022 and, in lieu thereof, order that the respondent's notice of motion filed 21 October 2022 be dismissed. (6) The respondent is to pay the applicant's costs of the appeal. Catchwords: APPEAL – leave to appeal – appeal from interlocutory order – primary judge granted application for medical examination of plaintiff – application made after exchange of Pre-Filing Statement and Pre-Filing Defence ("PFD") pursuant to Workplace Injury Management and Workers Compensation Act 1998 (NSW) – where PFD did not address plaintiff's psychological condition – where test sought on basis that solicitor considered it necessary to evaluate risk of exaggeration or feigning of condition – whether error in allowing examination without considering unchallenged medical evidence that questioned efficacy of testing and raised serious concerns that it would be detrimental to plaintiff's health – appeal allowed CIVIL PROCEDURE – medical examinations – claim for work injury damages – defendant applied for medical examination of plaintiff – re-exercise of discretion under r 23.4 of Uniform Civil Procedure Rules 2005 (NSW) – whether defendant's evidence supported alleged need for testing – specificity of medical evidence to plaintiff's circumstances – application dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: DK v Director of Public Prosecutions (NSW) (2021) NSWLR 66; [2021] NSWCA 134 Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75 House v The King (1936) 55 CLR 499 KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's Hospital Westmead and Anor [2010] NSWSC 891 Plaintiff [name withheld] v Stapleton [2017] NSWSC 914 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Prescott v Bulldog Tolls Limited [1981] 3 All ER 869 Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWSC 136 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 186 You, Jae Bok v R [2020] NSWCCA 71 Category: Principal judgment Parties: Livleen Chopra (Applicant) State of New South Wales (South Western Sydney Local Health District) (Respondent) Representation: Counsel: D Hooke SC / L Morgan (Applicant) D Stanton / T Weller-Wong (Respondent)