DIGITAL EQUIPMENT CORPORATION (AUSTRALIA) PTY LTD v SPATARO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY ACJ, SHELLER and POWELL JJA 1 November 1993, 1 November 1993 [1993] NSWCA 82 PRACTICE and PROCEDURE — medical examination — new area of expertise — rehabilitation specialist's examination requested — seventeen experts examine plaintiff- judge in practice list of Common Law Division refuses defendant's belated application to order examination by rehabilitation expert — on application for leave to appeal to the Court of Appeal — held: (Kirby ACJ; Sheller JA and Powell JA concurring): The application for leave to appeal should be refused because (a) no error of principle or relevant serious injustice was shown in the primary judge's decision; (b) although the application could be granted without disrupting the hearing of the claim, it was extremely belated and would involve inconvenience which could be obviated; (c) the provisions in Pt25 R7B SCR were irrelevant. Supreme Court Rules Pt25 R7. ORDERS Summons dismissed with costs. Kirby ACJ Before the Court is a summons for leave to appeal. By agreement, the parties have argued the substance of the appeal in case leave might be granted. They have done so because it is the wish of both parties not to interfere with the current listing of the matter in the special sittings of damages cases. That list begins on 29 November 1993. The Court has been informed that the proceedings have been allocated priority number 3 in that list. Accordingly, the proceedings between the parties will, in the ordinary course of events, begin on 29 November 1993. It is desirable that this Court should do nothing that would disturb that priority, at least unnecessarily. In form, the application is for leave to appeal from an order made by Abadee J on 18 October 1993. On that date, his Honour was sitting in a busy practice list. He had before him a motion for orders that Mr Anthony Spataro, (the opponent) should submit to two medical examinations by Professor Jones and Dr Morris. Abadee J refused the application. He did so without giving formal reasons. However, placed before this Court has been a transcript of the exchanges between counsel and his Honour. They adequately reveal his Honour's thinking. The record is also brief. In essence his Honour, in reaching his conclusion said: "We are not going to add them. So far as I am concerned it was in yesterday.... There was not a medical examination to be had. I thought we dealt with it and disposed of everything including my displeasure at the number of doctors that had been involved in the case. The application is refused." His Honour's reference to the number of doctors who had been involved in the case is a reference to the fact that, as the Court has been informed today, there have been nine medical practitioners qualified for the claimant. That includes one general medical practitioner, one neurosurgeon, a general surgeon, a neurologist, a physician and no fewer than four psychiatrists. 2 UNREPORTED JUDGMENTS The application to have the opponent submitted to examination by Dr Morris has been abandoned. The claimant's only complaint now is that, by reason of Abadee J's order, the claimant will lose the opportunity of having the opponent examined by a rehabilitation expert before the trial is called on. It is asserted that this will occasion a serious injustice to the claimant which this Court can still prevent by a timely order. The case concerns a still relatively young man of thirty one years who was injured by electrocution. Liability is in issue. So also is the issue of damages. The opponent has certainly seen a large number of medical practitioners. It has been said that, between the parties, fifty seven reports from seventeen medical practitioners have been produced. The proceedings will be heard before a jury. If the opponent succeeds, the range of verdicts that will be open to that jury in such a case is quite substantial. The most substantial disability suffered by the opponent appears to be psychiatric. Subject to establishing liability, a very substantial verdict would be difficult to disturb on appeal. On the other hand, a very small verdict might also be difficult to disturb on appeal. The case will depend very much upon the impression of the opponent and of the psychiatric medical evidence, upon the jury, assuming that the opponent establishes liability in the claimant. This Court is authorised to disturb a decision of the kind which Abadee J made only if an error of principle is established or if, although the claimant cannot point precisely to an error of principle, it can say that a substantial injustice is caused by leaving the order undisturbed. The claimant asserts that it should not be forced on to trial without the advantage of an expert witness who is a rehabilitationist. It says that, if Professor Jones cannot examine the opponent before the special sittings, alternative arrangements could be made by it which will not disrupt the listing of the case but will ensure that the claimant has the opportunity of presenting, before the jury, all of the evidence that will be useful in the defence of the opponent's action. The point of error, to which the claimant addressed the attention of the Court, was the suggestion that Abadee J had rested his conclusion simply upon the number of medical practitioners who had been involved in examining the opponent. The claimant pointed out that it was not the number but the expertise of the medical practitioners which was in question. The claimant also pointed out that the opponent had been on notice of the request for an examination by a rehabilitationist from early in 1993. This consideration, together with his Honour's attention solely to the number of medical practitioners, displayed sufficient error to warrant this Court's disturbing his Honour's order conformably with established legal principles governing interlocutory appeals in matters of practice and procedure. The claimant also relied upon the injustice of being forced to trial, in a case of this kind, without the expertise which it wished to present before a jury. And which it could secure without any relevant injustice or disadvantage to the opponent. There is no doubt that the summons involves an arguable point. This Court should always endeavour to ensure that cases are presented at trial without unfairness. However, the Court of Appeal can only do so within the rules which govern its relationship with trial judges. These require respect for their discretionary rulings, especially in matters of practice and procedure. It is not necessary to refer to authorities on this point. The authorities are all too well known. The reasons behind the rule are self evident. If the Court were to become UWRGITAL EQUIPMENT CORPORATION (AUSTRALIA) PTY LTD v SPATARO (Powell JAB a venue for second guessing such decisions of the judges in the busy practice courts of the State, including the Divisions of the Supreme Court, the Court of Appeal would have even more to do that it does - and than is justifiable. Had I been faced with the application of the claimant I think I would probably have ordered that the opponent undergo the examination by a rehabilitationist. I say that because of the factors that I have already described in relation to the nature of the trial and the issues that will be presented to the jury and the possibility of still doing so without losing the hearing in the special sittings. However that is not the question for me. The question is whether it has been shown that Abadee J erred in a way which authorises the intervention of this Court. Relevant to the disposal of that question are two further considerations. The first is that the claimant has taken a very long time to make the application that the opponent be examined by a rehabilitation expert. The case arises out of an accident in 1986. The proceedings were commenced in the District court in that year. They were transferred to the Supreme Court in 1991. It has therefore taken the claimant until the last year of preparation of the case to seek and, indeed, virtually to the very eve of the trial, to press for an examination within this additional area of expertise. Were the Court to order that the claimant have that advantage, it would necessitate, in the practical reality of the preparation for trial, that the opponent at this late stage also search around for a person with similar expertise to be available to give up to date evidence of this character before a jury. That might or might not be available. However, it would certainly be difficult at this stage. The second consideration is the reliance of the claimant upon Pt25 R7B of the Supreme Court Rules. That rule provides for the Court to make orders for the examination of a party for the purpose of assessing the extent of his or her impairment and submitting that party to rehabilitation tests. In my view that Part has no application to this case. That was not the basis upon which the claimant sought the order before Abadee J. Pt25 R7B SCR is a sensible rule. However, it is irrelevant to these proceedings. One final consideration should be mentioned. That is the fact that both parties have a report prepared, very early in this litigation, by the Illawarra Rehabilitation Centre. It is signed by Dr Hawthorne, registrar of the Rehabilitation Centre. No doubt Dr Hawthrone would be available to both parties, or to either of them, to give evidence of a general character concerning rehabilitation as it affects a person such as the opponent. The result is that I am of the view that the claimant has not established sufficient error to authorise the intervention of this Court. For that reason the Court should dismiss the summons. The claimant must pay the opponent's costs. Sheller JA For the reasons given by the Acting Chief Justice, I agree that theapplication should be dismissed with costs. Powell JA I too agree. Kirby ACJ: The summons is dismissed with costs. Summons dismissed with costs. Counsel for the Claimant: J Over Instructed by: Hunt and Hunt 4 UNREPORTED JUDGMENTS Counsel for the Opponent: J McKenzie Instructed by: Bolzan and Princie