Moran v Moran [No 2] [1999] NSWSC 1325

New South Wales Supreme Court CITATION : Moran v Moran [No 2] [1999] NSWSC 1325 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 20032/98; 21360/95 31/1/2000 1-3/2/2000 HEARING DATE(S) : 7-11/2/2000 14-18/2/2000 21-24/2/2000 JUDGMENT DATE : 24 February 2000

Kristina Moran (Pl) Douglas John Moran (1D) PARTIES : Greta Richmond Moran (2D) Peter Moran (3D) Moran Health Care Group Pty Ltd (4D) Doug Moran Holdings Pty Ltd (5D) JUDGMENT OF : Kirby J

P Semmler QC/D E Baran (Pl) COUNSEL : I Harrison SC/L McFee (Defs) J T Gleeson (for A & S Bory) SOLICITORS : Carroll & O'Dea (Pl) Clayton Utz (Defs) CATCHWORDS : Application for medical examination of witnesses. ACTS CITED : Supreme Court Act (Part 25 - rules 2, 5 & 6) DECISION : Refer Paras 15 to 19

THE SUPREME COURT Revised OF NEW SOUTH WALES COMMON LAW DIVISION

KIRBY J

Thursday 24 February 2000

20032/98 - Kristina MORAN v Douglas J MORAN & Ors 21360/95 - Kristina MORAN V Douglas J MORAN & Ors

JUDGMENT [No 2] - On application to have proposed witnesses psychiatrically examined

1 HIS HONOUR: An application is made by the plaintiff to call certain witnesses, Andrew Bory and Stephen Bory, who are said to be the stepchildren of the third defendant, Peter Moran. 2 The calling of these witnesses was foreshadowed by the plaintiff's solicitors some time before Christmas 1999, and the solicitors for Messrs Bory responded by asking those solicitors to identify the issues in respect of which the persons concerned could give relevant evidence. They also foreshadowed that the two individuals were subject to psychiatric care by a Dr Read, and that their presence in court may be detrimental to their health. 3 The issue was, to some extent, allowed to drift over the long vacation. The solicitors for the plaintiff, as I recall the papers, resisted the attempt by those appearing for the witnesses to circumscribe their rights to call a witness under subpoena. 4 Ultimately, when the trial began on 1 February 2000, Mr Gleeson of counsel announced his appearance for Andrew Bory and Stephen Bory. Mr Pike of counsel announced his appearance for Dr Read, their treating psychiatrist. The matter was then deferred on certain orders that five days notice would be given if the issue of the calling of these witnesses was to be revived. 5 In the meantime, apparently, Mr Semmler QC appearing on behalf of the plaintiff had determined that the issue might be handled in a way which he understood was suitable to those appearing for the witnesses by means of the tender of various statements. That, ultimately, was resisted, and indeed Mr Gleeson, at short notice, and Mr Pike appeared and drew attention to the order made requiring five days notice. The issue was stood over until today, Thursday 24 February for argument in accordance with the original order. 6 Particulars were required of the plaintiff identifying the particular parts of the statement which would be tendered as relevant to issues before this Court, and the forensic purpose which the plaintiff sought to serve by that material. For various reasons the issue has now been delayed until Monday next when it will be argued. In the meantime Mr Semmler has, to some extent, and perhaps in response to the way in which the issue has evolved as I have described, changed his position somewhat. He has said to me today in argument that he now seeks to call these two individuals as witnesses, rather than rely simply upon their statements. 7 However that may be - and that may no doubt change again in the course of the argument on Monday - there will be an issue on Monday next as to whether the material should be admitted, assuming it to be relevant, given the individuals concerned are not to be called as witnesses. 8 In those circumstances Mr Semmler has indicated that he would, in any event, seek to elucidate whether the psychiatric condition of these individuals is such that they would be detrimentally affected by giving evidence. 9 Mr Gleeson has helpfully provided written submissions drawing attention to the terms of Pt 25 of the Supreme Court Rules. He has submitted that there is no power in respect of a person who is not a party to the proceedings to be ordered to undergo a medical examination. 10 Mr Semmler, responding to that, has submitted there is power and, if need be, there is the inherent power of the Court to deal with that situation. 11 Part 25 r 5(1) refers to a "person concerned", which is then defined in terms of Pt 25.1 r 1(1) as "a person relevant to any matter in question". I believe such a question has arisen in these proceedings, namely, whether witnesses who are under subpoena are medically able to give evidence. 12 I believe the proposed witnesses are "persons concerned", within the meaning of the rules, and there is power. Even were I wrong in that, there is inherent power in the court, there being the potential for injustice to the plaintiff if evidence which is relevant to her cause is shut out by reason of an inability to examine an issue which is said to prevent the calling of those witnesses. 13 I therefore believe that it is appropriate to order that Messers Andrew and Stephen Bory undergo an examination by a psychiatrist nominated by the plaintiff tomorrow, Friday. 14 Mr Gleeson has provided short minutes of the order which should be made. I believe that the terms of that order are appropriate, with certain modifications. Dr Read, the treating doctor of the Messers Bory, should have the right to attend the examination, but subject to the convenience of the doctor who examines the witnesses. If Dr Read is able to fit in with that doctor, then I believe it is reasonable that he be present. If he is not, then I do not believe that I am obliged, under Pt 25, Rl 6, to order that he be present, and I do not do so. 15 I make the orders in accordance with the short minutes of order which I sign, subject to the following. 16 Whilst Dr Read can be present, I do not think that those words in paragraph (c) (relating to fees) or those relating to Dr Read in (d) (on the same subject) are appropriate, and I have amended by hand the short minutes. 17 What I have in mind is that order (c) will be the medical examination occurring in the presence of Dr Read provided the examination takes place at 7 am at Dr Phillips' surgery, or such later time as Dr Phillips appoints. 18 Paragraph (c) will read, "The examination occur in the presence of Dr Read provided the examination takes place at 7 am at Dr Phillips surgery or such later time as Dr Phillips fixes." 19 I think it is reasonable that Dr Phillips provide a copy his report to Dr Read and the report be provided to the plaintiff's solicitors and sent to those solicitors for the witnesses and the defendants. **********