New South Wales Supreme Court CITATION : Foster v State of New South Wales [2005] NSWSC 957 HEARING DATE(S) : 22 September 2005 JUDGMENT DATE : 28 September 2005 JURISDICTION : Common Law Division JUDGMENT OF : Associate Justice Malpass at 1 DECISION : The orders made by the Registrar on 4 July 2005 are set aside; the notice of motion filed on 8 April 2005 is dismissed; the defendant is to pay the costs of both that notice of motion and the notice of motion filed on 8 July 2005; the exhibits may be returned. CATCHWORDS : Order for medical examination - discretionary power - relevant considerations and onus - evidence from expert that such examination would have an adverse impact on the plaintiff's health - expert not cross-examined - finding to be made on competing pieces of paper - defendant's experts not preferred - failure to discharge onus. LEGISLATION CITED : Supreme Court Rules 1970, Pt 25 r 5 Kenneth Foster (Plaintiff) PARTIES : State of New South Wales (Defendant) FILE NUMBER(S) : SC 20320/04 Mr M Jenkins (Plaintiff) COUNSEL : Mr D Mallon (Defendant) TurksLegal (Plaintiff) SOLICITORS : I V Knight Crown Solicitor (Defendant) LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 20320/04 LOWER COURT JUDICIAL OFFICER : Assistant Registrar Howe - 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Associate Justice Malpass 28 September 2005 20320 of 2004 Kenneth Foster v State of New South Wales JUDGMENT 1 His Honour: The plaintiff now has proceedings in this Court. A claim is made for damages arising out of personal injury (including a psychiatric condition which has brought about, inter alia, memory disturbance). 2 At the time of the alleged injury, the plaintiff was a police officer. The injury is said to arise, inter alia, out of circumstances in which the plaintiff was held as a hostage on 18 July 1990. 3 When the proceedings were earlier in the District Court, it was found that the plaintiff was a disabled person within the meaning of ss11(3) and 52 of the Limitation Act 1969. 4 The plaintiff has been examined by a number of practitioners. Apart from general practitioners, he has been treated by Dr Boettcher (former treating psychiatrist) and Dr Hansen (consultant psychiatrist). The plaintiff has also been seen for medico-legal purposes by Dr Klug (consultant psychiatrist) and Dr Strum (consultant psychiatrist). On behalf of the defendant, the plaintiff has seen Dr Harris, Mr Goldman (clinical psychologist), Dr Lewin (psychiatrist), Dr Parmegiani (psychiatrist) and Dr Gapper. 5 The defendant now requires that the plaintiff be examined by Dr Roberts (clinical psychologist) who has been carrying out neuro-psychometric testing for over thirty years and who regularly carries out neuro-psychological assessments where cognitive functions are in question. Originally, an appointment of five hours was contemplated. It is now contemplated that the examination can also be effected by two or three shorter consultations. The defendant is prepared to allow the plaintiff to have a medical practitioner of his own choice to be present during the examination. 6 The plaintiff has refused to submit to the examination. There is evidence that he has an aversion to medico-legal examinations of the type conducted by Dr Lewin. 7 The psychological condition of the plaintiff is a contentious matter (inter alia, Dr Lewin is of the view that the plaintiff is not suffering from any psychiatric illness and is not suicidal). 8 The defendant brought an application pursuant to Pt 25 r 5 of the Supreme Court Rules 1970 (the notice of motion was filed on 8 April 2005). This provision enables the Court to make orders for the medical examination of a person. 9 The application was heard by Assistant Registrar Howe on 27 June 2005. On 4 July 2005 he ordered that the plaintiff submit to an examination by Dr Roberts. It was also ordered that the plaintiff may have a medical expert chosen by him attend such an examination. 10 The plaintiff now seeks a review of that decision (the notice of motion was filed on 8 July 2005). 11 There are numerous authorities on a nature of a review. There are many decisions concerning the review of a decision of a Registrar. The authorities throw up a divergence of views. 12 Despite the divergence, some matters seem to be non-controversial. The decision of the Registrar stands until it is set aside. A review is in the nature of a second look at the decision of the Registrar. There has to be a basis shown for the setting aside of the decision. 13 The nature of the power conferred by Pt 25 r 5 (or its successor under the Uniform Civil Procedure regime) has also been the subject of judicial consideration. The provisions confer a discretionary power. It is a power to be exercised having regard to the relevant circumstances of the particular case that is before the Court. The discretion is to be exercised in a manner that best serves the dictates of justice. The onus rests with the party seeking the order (it must demonstrate an entitlement to that order). 14 The review was undertaken on 22 September 2005. The Court had before it the material that was put in evidence before the Registrar (it was in the form of affidavits and documentary exhibits). A second look at his decision took place. 15 The plaintiff contends that the Registrar has made errors (including applying the wrong test and erroneously assuming that Mr Goldman was qualified by the plaintiff). 16 It appears that Mr Goldman prepared a report at the direction of the Police Service and for the benefit of the Police Service on 22 January 1996. The report has since been relied on by the plaintiff. In his decision, the Registrar proceeded on the basis that the examination of the plaintiff by Dr Roberts was required to counter Mr Goldman's report. 17 Shortly after the commencement of the review, it became common ground that the exercise of the discretionary power to order a medical examination should be considered in the manner earlier set forth in this judgment. Counsel then addressed on the matters that were considered to be the relevant circumstances of the case. Largely, the relevant circumstances were seen to be whether the proposed examination served a legitimate forensic purpose and whether it would have an adverse effect on the health of the plaintiff. 18 The defendant takes the stance that it is defending a large claim in this Court and should be allowed to have the testing done so that it can meet this claim. It is testing of the plaintiff that has not been undertaken by any of the other practitioners who have assessed him. 19 In a report dated 30 March 2005, Dr Lewin opined:- When I re-evaluated the case of Mr Foster today (24/3/2005) I found evidence of mild intermittent anxiety and depressive symptoms. Mr Foster described an unusual pattern of memory disturbance. This is not the memory disturbance of dementia, nor is it the memory disturbance characteristic of Morbid Depression. This disturbance of memory is not related to any psychiatric condition. You may consider it prudent to review this important question. In my opinion, it would be reasonable for Mr Foster to undergo neuro-psychometric testing by an expert neuro-psychologist. [p 9] 20 It is said that Dr Roberts' assessment is required not only to pursue what has been said by Dr Lewin, but also to enable the defendant to generally meet the claim. 21 The plaintiff relied on evidence that the proposed examination would be adverse to his health and that he represents a suicide risk (see, inter alia, a report from Dr Klug dated 28 April 2005). It is supported by other evidence (Dr James, the plaintiff's current GP). 22 The defendant did not cross-examine Dr Klug. In that sense, his opinion has not been challenged. 23 As mentioned earlier, there is evidence from other experts that presents the view that the plaintiff does not suffer from any psychiatric illness and is not suicidal. There is no evidence of, inter alia, suicide attempts following a medico-legal examination (the plaintiff saw, inter alia, Dr Lewin subsequent to Dr Klug expressing his opinion). 24 Be that as it may, whatever evidence is relied on by the defendant does no more than stand in conflict with the evidence from Dr Klug (it being evidence of reasonably recent origin). Any decision on the conflicting views has to made largely by resort to competing pieces of paper. It is a situation that confronts the Court with a formidable task. 25 The defendant asks the Court to prefer its material. I am not satisfied that such a finding should be made. In such circumstances, the question of onus becomes a matter of importance. 26 Whilst the plaintiff may bear an onus in this review, it was the defendant that had the onus before the Registrar. It was an onus that required the defendant to satisfy the Registrar that the discretionary power should be exercised in its favour. 27 It seems to me that when regard is had to the relevant circumstances of this particular case and the dictates of justice, the defendant has failed to discharge the onus borne by it. In my view, the application for medical examination should fail. 28 The orders made by the Registrar on 4 July 2005 are set aside. The notice of motion filed on 8 April 2005 is dismissed. The defendant is to pay the costs of both that notice of motion and the notice of motion filed on 8 July 2005. The exhibits may be returned. ********** 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. 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