Supreme Court New South Wales Medium Neutral Citation: Davies v State of New South Wales [2013] NSWSC 1277 Hearing dates: 26 August 2013 Decision date: 27 August 2013 Jurisdiction: Common Law Before: Hall J Decision: Application for review of Registrar's decision refused Catchwords: PROCEDURE - application for review of Registrar's decision ordering plaintiff to attend medical examination - where plaintiff already assessed on behalf of defendant by a consultant psychiatrist - where plaintiff had been examined by a highly experienced medical expert whose report had been served on defendant prior to plaintiff being assessed by the specialist psychiatrist on behalf of defendant - whether Registrar made decision without evidence that a second medical examination was necessary - issue of causation of plaintiff's conditions complex - Registrar's decision based upon a broad basis, namely that as causation was a complex matter, it was open to him to have regard to the nature of the central issue in the proceedings in deciding that an order should be made permitting the defendant to have a second examination undertaken by a different specialist - no House v The King error demonstrated - application refused Legislation Cited: Uniform Civil Procedure Rules, r 23.4; r 31.17 Cases Cited: House v The King Tomko v Palasty (No 2) [2007] NSWCA 369 Category: Interlocutory applications Parties: Christopher Davies (Plaintiff/Applicant) State of New South Wales (Defendant/Respondent) Representation: Counsel: A Naylor (Plaintiff/Applicant) M Hutchings (Defendant/Respondent) Solicitors: Kim Smith & Associates (Plaintiff/Applicant) McCabes (Defendant/Respondent) File Number(s): 2012/88028 Judgment EX TEMPORE JUDGMENT ON APPLICATION FOR REVIEW 1HALL J: The plaintiff seeks a review of a decision and order of the Registrar made on 16 July 2013, directing him to submit to a medical examination by Dr Alex Apler on behalf of the defendant. The order sought is that the Registrar's order be discharged. 2The proceedings were initially commenced by way of statement of claim and filed on 19 March 2012. The plaintiff presently proceeds upon the basis of a further amended statement of claim filed 18 July 2013. The proceedings are brought against the defendant pursuant to the Crown Proceedings Act 1988 in respect of the alleged acts and omissions of the New South Wales Police Force in whose service the plaintiff was engaged. The plaintiff commenced with the Police Force on 12 November 1982 and thereafter served in a considerable number of capacities over the years until he ceased active duties on or about 1 February 2008. 3The plaintiff is presently fifty one years of age and seeks damages for psychiatric injuries said to have been caused by the alleged negligent failure of the defendant to prevent or ameliorate the effects of the plaintiff's exposure to numerous traumatic events during the course of his police duties. 4The defendant filed a notice of motion dated 9 July supported by the affidavit of Stewart James Clark Windybank, solicitor, sworn on 9 July 2013. In the affidavit it was stated that the plaintiff was assessed on behalf of the defendant by Dr Phillips on 28 and 29 November 2012. 5There are then set out a number of matters in particular in paragraphs 3, 4, 5, 6 and 7 as follows: 3. I am instructed to arrange an appointment for the plaintiff to be assessed by Dr Alex Apler. 4. The plaintiff's medical condition is complex. He alleges Post-Traumatic Stress Disorder (PTSD), major depressive disorder and alcohol dependence as a result of the negligence of the defendant. 5. I am instructed that the plaintiff had long-standing domestic problems that appeared unrelated to his service with the NSWPF. 6. I am instructed that the plaintiff had problems with alcohol that appeared unrelated to his service with the NSWPF. 7. The question of the causation requires detailed and careful analysis." 6I note paragraphs 8 and 11 of his affidavit were not read before the Registrar. 7Mr Windybank noted that the plaintiff had qualified Professor Alexander McFarlane who is highly regarded in the study of PTSD. Mr Windybanks stated that his report is dated 24 September 2012 and was served on the defendant's solicitors well prior to the examination carried out by Dr Phillips. 8The plaintiff's notice of motion was supported by the affidavit of Kim Howard Smith, solicitor, sworn 18 July 2013. 9Annexed is a copy of the plaintiff's written submissions relied upon in the present proceedings dated 16 July 2013. 10Mr Naylor of counsel, who appeared on behalf of the plaintiff/applicant, noted that the defendant had not served any report in consequence of the plaintiff having been assessed by Dr Phillips on 28 and 29 November 2012. It is further noted that the report by Professor Macfarlane was available to the defendant at the time the plaintiff was examined by Dr Phillips. 11It is necessary to refer to the relevant rules and the Practice Notes and reference will shortly be made to principles to be applied in determining a review application as enunciated in the decision of Tomko v Palasty (No 2) [2007] NSWCA 369. 12Uniform Civil Procedure Rule 23.4 provides: (1) The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place. (2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination. 13Uniform Civil Procedure Rule 31.17 provides: "The main purposes of this Division are as follows: (a) to ensure that the court has control over the giving of expert evidence. (b) to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings. (c) to avoid unnecessary costs associated with parties to proceedings retaining different experts. (d) if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court, (e) if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings. (f) to declare the duty of an expert witness in relation to the court and the parties to proceedings. 14Practice Note Number CL5 states: "As a guide, the number of expert witnesses giving evidence on behalf of a party shall be limited to: (a) one medical expert in any speciality, unless there is a substantial issue as to ongoing disability, in which case the number shall be limited to two in any relevant speciality concerning that disability; and (b) two experts of any other kind." 15The judgment of the Court of Appeal in Tomko v Palasty (No 2), (Hodgson, Ipp and Basten JJA), is the leading authority. The following are principles extracted from the judgment of Hodgson JA with whom Ipp JA agreed: (1) There is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that in the interests of justice the Court should exercise its discretion to do so. (2) The review of a decision or order of a registrar is not an appeal. (3) In a review a court must exercise its own discretion; (4) The discretion extends to (a) A discretion as to whether, and (b) If so, how to intervene. (5) In the case of a decision on practice or procedure, this will normally require at least a demonstration of an error of law or a House v The King error, or a material change of circumstances or evidence that would satisfy the strict requirement of fresh evidence. 16In the submissions on this application for review it is observed that the Registrar's decision was interlocutory in nature concerning the matter of practice or procedure. The plaintiff had the onus to demonstrate that the order should be discharged or set aside. It was submitted that the Registrar's orders should be set aside on the ground that it was affected by error of law of the kind that would warrant intervention. 17On the question of error of law a number of matters were raised by Mr Naylor in his very helpful and detailed submissions. On the question of the "no evidence" ground which was said to constitute an error of law, a number of matters were addressed in paragraphs 23 to 26 of those submissions. I will seek to paraphrase them as follows: 18Firstly, no evidence to conclude that Dr Phillips was not qualified to address issues of causation or any other issue. 19Secondly, no evidentiary basis on which to conclude that Dr Phillips did not or could not deal with the question of causation. 20I note specifically the submission that there was no evidence that Dr Phillips' report did not deal adequately with the question of causation. Thirdly, no evidence that Dr Phillips had informed the legal representatives of the defendant that he was incapable or not properly qualified to deal with the issue of causation. 21Fourthly, no evidence that the particular issues of causation raised by the present matter justified the defendant qualifying more than one medical expert. 22In Mr Naylor's written submissions at paragraph 27 it was stated that: "In the absence of any evidence justifying the Defendant in requiring the Plaintiff to submit to an examination by a second psychiatrist, the real issue in the proceedings is the approach that should be taken to a proper construction of the relevant provisions of the UCPR, in particular, rr 23.4(1) and 31.17(e)]." 23It was submitted that a principled approach must be taken towards a proper construction of the rules and that they should not be construed in a manner that contemplates a general right on the part of the Defendant to "shop around" for medical opinions in relation to causation and in so doing requiring the plaintiff to submit to examinations. If there is a proper basis for an additional medical opinion then it should be supported by evidence. However, in this case there was no such evidence and the defendant is merely seeking a second opinion. 24To permit the defendant to do so, it was further submitted, will cause expense and delay without a proper evidentiary foundation and would be contrary to the overriding purpose of the UCPR to facilitate the just, cheap and quick resolution of the real issues in the proceedings. 25The submissions for the defendant relied upon the matters raised in the submissions before the Registrar. During the course of the hearing of the present application the focus was on the issue of causation. It was contended for the defendant that there was material that required assessment on the issue as to the cause of any disability and in particular whether there was any cause related to any alcohol problem or conditions related to alcohol abuse. 26In determining this application I accept as Mr Naylor put that there is no evidence whatsoever to suggest that Dr Phillips was not able or was disadvantaged in some way in dealing with the issue of causation. Further, there is no evidence that permits a comparison such as to conclude that Dr Apler was better qualified than Dr Phillips or that Dr Phillips was under some disadvantage in assessing all relevant issues. That, however, is not enough to resolve this application. 27In dealing with the submission that there is no evidence to justify an order that the plaintiff be further examined by a psychiatrist when he has already been examined, it is necessary to bring into account the basis upon which the Registrar proceeded. 28The Registrar, a very experienced Registrar, set about determining what was a difficult application. He commenced by referring to certain paragraphs in the Statement of Claim which both Mr Naylor and Mr Hutchings had referred to at page 11 of the Statement of Claim and paragraphs 37 to 39. 29The Registrar went on to deal with the nature of the issues, in particular the claim based on PTSD and a major depressive disorder and noted there were a number of issues which were described as complex. By that, as I understand the Registrar's conclusion, the complex factual detailed history of the plaintiff's employment and the various exposures he had as relevant when considering the discrete issue of causation. The application was addressed against that background. 30The Registrar on a number of occasions referred to the complex issues that the case, to his perception, presented and emphasised, apart from the Practice Note Number 5, the court's other powers in respect of case management under Part 2 of the Rules which are designed to ensure that all issues may be properly dealt with. 31In terms of the complexity aspect the Registrar referred to the difficult and lengthy report by Professor McFarlane and said at page 3 to 4: "In reply to the various matters that have been raised, Mr Hutchings has put forward that it is not unreasonable in a matter such as this to seek a second opinion in respect of assessing it and assessing particularly a lengthy report that has been obtained from Professor McFarlane and that specifically what this matter comes down to is one of the defendant being able to look at the complex issues that are raised with respect to the question of causation and the matters to which I previously referred with respect to the aspect of alcoholism and previous admissions and whether or not there is more than one cause of the plaintiff's condition which is unrelated to work. I note that the amended statement of claim sets out in some detail a claim which is, if successful, presents the defendant with a significant claim in respect of economic loss. Bearing all those matters in mind and noting also the lengthy report from Professor McFarlane I believe that the mattes that have been identified by the defendant with respect to being able to deal with the complex issues in this matter and especially dealing with the question of causation, and the impact that that may have in respect of this claim is a sufficient reason for the defendant to obtain an order that the plaintiff attend the medical examination that has been arranged on 26 August. To do so I believe is in accordance with the principles set out in the Uniform Civil Procedure Rules and the Civil Procedure Act with regards to identifying the real issues. I do not believe that the mere fact that the plaintiff may have seen Dr Phillips is such bearing in mind the matters that have been put forward today as to prevent a further examination to deal with the complex issue of causation which I think is something that will definitely need to be addressed in these proceedings. Accordingly I intend to make the order that the plaintiff attend the medical examination arranged with Dr Apler on 26 August." 32The Registrar in coming to his decision identified the importance of identifying the real issues particularly so in a case with some complexity including potential complexity on the issue of causation. 33In determining whether the Registrar erred in law the question is whether or not it is possible to say that he had no evidence upon which to make the decision he did. It is, of course, easy to establish a no evidence point when the decision relates to a discrete issue but the Registrar was required to make a decision of a broader kind of a procedural nature as to whether having regard to all things considered by him he considered it appropriate to permit the defendant to have a further medical examination of the plaintiff. It is, in my view, very difficult to say in those circumstances that there is a no evidence point. 34As the Registrar is at pains to emphasise, the fact of the examination by Dr Phillips does not stand, of itself, in the way of the Registrar determining what should be done, what should be permitted in the interests of justice. It is plain the Registrar took the view by reason of the complex issues and matters I have referred to that at the end of the day the defendant should be given the opportunity to have a further medical examination notwithstanding the guideline rule and other matters which the plaintiff relied upon. 35In coming to this decision, which I have very shortly announced, I have been very concerned that this is not simply what has been referred to as a "doctor shopping" exercise. 36There is no evidence that would support that it is although there are certain aspects about the case, particularly in light of the fact that no report of Dr Phillips has been served, that make it appropriate for Mr Naylor to raise the question as to whether this is a case involving "doctor shopping" without positively asserting it was. 37It would be wrong for a defendant to proceed upon that basis, that is to say, a doctor shopping exercise for whatever reason. That is contrary to the Rules in the UCPR and to the spirit of those Rules. The purpose of the UCPR is to assist the court in identifying the issues and assist in the quick, just and cheap resolution of the matter. Having said that I am not in a position to make any findings about that one way or the other. I can only deal with it in the way the defendant has argued both before the Registrar and before me. 38I have concluded that this application for review should be refused on the basis I have stated, namely, that the Registrar took a broad view overall as to whether or not the issues to which he refers would justify a second medical examination. I do not consider in those circumstances that it can be said that his decision is affected by error of law. I do not see any other basis on which I should intervene as a matter of discretion and accordingly the application is refused. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 September 2013