Kirschner v Perochinsky [2012] NSWCA 235

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kirschner v Perochinsky [2012] NSWCA 235 Hearing dates: 25 July 2012 Decision date: 25 July 2012 Before: Basten JA at [1]; Macfarlan JA at [11] Decision: 1. Dismiss the application for leave to appeal. 2. Order the applicant to pay the respondent's costs of the application, such costs to be payable forthwith. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - leave to appeal - appeal from interlocutory decision - primary judge dismissed application for medical examination of plaintiff - whether primary judge erred in identifying relevant factual considerations - whether Court of Appeal should interfere with orders regulating procedure in a trial division - discussion of In The Will of Gilbert (1946) 46 SR(NSW) 318

PROCEDURE - medical examination - defendants applied for medical examination of plaintiff by medical expert - plaintiff previously medically examined at defendants' request - whether prior examination a consideration relevant to subsequent application Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 23.1, 23.5; Pt 23 Cases Cited: In The Will of Gilbert (1946) 46 SR(NSW) 318 Category: Principal judgment Parties: Sandra Kirschner (First Applicant) Bernhard Kirschner (Second Applicant) Antonina Perochinsky (Respondent) Representation: Counsel: