State of New South Wales v Hollingsworth [2023] NSWCA 152

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Hollingsworth [2023] NSWCA 152 Hearing dates: 09 June 2023 Date of orders: 04 July 2023 Decision date: 04 July 2023 Before: Mitchelmore JA at [1]; Stern JA at [2]; Basten AJA at [139] Decision: (1) Leave to appeal granted. (2) Direct that within 7 days the State file a notice of appeal in the form of the draft amended notice of appeal filed on 9 June 2023. (3) The appeal is allowed. (4) Orders 1 to 4 made by the primary judge should be set aside and instead there should be orders that: (a) under UCPR, r 23.4, Mr Hollingsworth is to submit to an assessment by a psychiatrist instructed by the State irrespective of whether that psychiatrist permits him to record the assessment by audio or audio-visual means; and (b) Mr Hollingsworth should pay the State's costs of and incidental to the motion filed 17 October 2022 (5) Mr Hollingsworth should pay the State's costs of the application for leave to appeal and the appeal. Catchwords: CIVIL PROCEDURE – medical examination – whether primary judge erred in relying on cl 5(c) Sch 7 of the Uniform Civil Procedure Rules 2005 (NSW) – Clause 5(c) does not confer power on the Court to direct expert witnesses as to how they conduct assessment for the purpose of preparing expert report – whether primary judge took into account irrelevant considerations and failed to take into account relevant considerations – no right to have assessment recorded; JURISDICTION – whether orders made by the primary judge were within power – Rule 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) – Section 61 of the Civil Procedure Act 2005 (NSW) – inherent jurisdiction; JUDGMENT AND ORDERS – Amending, varying and setting aside – Court of Appeal – Re-exercise of discretion under r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56(1), 58(1), 61 District Court Act 1973 (NSW), s 127(2)(a) Supreme Court Act 1970 (NSW), s 23 Surveillance Devices Act 2007 (NSW), ss 4, 7 Uniform Civil Procedure Rules 2005 (NSW), rr 23.4, 23.5, 23.9, 31.23, 31.24, Sch 7, cll 5, 6 Disability Discrimination Act 1992 (Cth), s 3, 6, 24 Cases Cited: Adam P Brown Male Fashions Ltd v Phillip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Boral Transport Pty Ltd v Gulic [2013] NSWCA 150 Chopra v State of NSW (South Western Sydney Local Health District) [2023] NSWCA 142 Crofts v State of Queensland [2001] QSC 220 Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 Hamilton v Oades (1998) 166 CLR 486; [1989] HCA 21 Hill v Sydney Night Patrol & Inquiry Co Pty Ltd t/as SNP Security [2021] NSWSC 1425 House v The King (1936) 55 CLR 499; [1936] HCA 40 JKZ v The Scots College [2018] NSWSC 1526 KF v Royal Alexandra Hospital for Children [2010] NSWSC 891 Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28 Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59; (2009) 230 FLR 336 McGuirk v University of New South Wales [2010] NSWCA 104 Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v LPSP [2023] FCAFC 24; (2023) 408 ALR 7 Plaintiff [name withheld] v Stapleton [2017] NSWSC 914 Prescott v Bulldog Tools Limited [1981] 3 All ER 869 Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73 Rowlands v New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136 Ryan v Regent Enterprises (1991) 3 WAR 552 Secretary, Department of Health & Community Services v JWB (1992) 175 CLR 218 at 253; [1992] HCA 15 Starr v National Coal Board [1977] 1 All ER 243 Texts Cited: I H Jacob "The Inherent Jurisdiction of the Court" (1970) 23 Current Legal Problems 23 Michael J Gross et al "The Covert Recording of Medico-Legal Consultations" (2018) 84(6) Medico-Legal Journal 202 Royal Australian and New Zealand College of Psychiatry, Professional Guideline 11: Developing Reports and Conducting Independent Examinations in Medico-Legal Settings (November 2020) Category: Principal judgment Parties: State of New South Wales (Applicant) Michael Hollingsworth (Respondent) Representation: Counsel: DA Lloyd SC / JC Chapman (Applicant) V Heath (Respondent)