Philip Karadaghian v Big Beat (Australia) Pty Ltd & Ambiant Pty Limited [2014] NSWSC 1185

Supreme Court New South Wales

Medium Neutral Citation: Philip Karadaghian v Big Beat (Australia) Pty Ltd & Ambiant Pty Limited [2014] NSWSC 1185 Hearing dates: 26 February 2013, 12-13 June 2013, 25 July 2013, 22 November 2013, 23 May 2014, 18 August 2014 Decision date: 27 August 2014 Before: Rothman J Decision: 1. Prayers 1 and 2 of the first defendant's motion, notice of which was filed on 26 September 2012, be dismissed; 2. Costs are the plaintiff's costs in the cause. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Civil Procedure Act 2005 (NSW) Texts Cited: Motor Accident Authority NSW, Guidelines on Neuropsychological Assessment of Adults with Mild Traumatic Brain Injury (2006) Category: Interlocutory applications Parties: Philip Karadaghian (Plaintiff) Big Beat (Australia) Pty Ltd (First Defendant) Ambiant Pty Ltd (Second Defendant) Representation: Counsel: G Masselos (Plaintiff) D Lloyd (First Defendant) Self represented (Second Defendant) Solicitors: Steve Masselos & Co Solicitors (Plaintiff) Norton Rose Australia (First Defendant) File Number(s): 2010/351104 Publication restriction: None

Judgment 1HIS HONOUR: The Court has dealt with a number of issues arising out of motions in these proceedings. Still remaining are prayers for orders requiring the plaintiff to undergo psychological examination by Professor Mattick and to grant leave for the first defendant to serve a report within 4 weeks of the appointments. 2By orders issued 13 December 2011, the Court required the first defendant to serve any supplementary medical reports by 30 March 2012. The report for which leave is sought should have been served by that date, at the latest. Otherwise, it was due to be served by 1 September 2011. 3The power to order the examination is described in the Uniform Civil Procedure Rules 2005 (UCPR), r 23.4. There is no issue that the Court has such power. The issue is whether the power should be exercised at a point in time over 2 years after the report should have been filed. 4A significant issue of damage to the plaintiff relates to the effect of psychological or psychiatric injuries on him. As a consequence one can assess that, without more, or any other factor, a psychiatric or psychological report would have significant probative value. 5In support of its motion, the first defendant relies on the procedural history and delay in the proceedings thus far; the importance of the issue to which any report will go; the absence of a psychologist's report served by the defendant (notwithstanding a psychiatrist's report) in the face of both a psychiatrist's and psychologist's report served by the plaintiff; an alleged alteration in the plaintiff's damages case caused by the transfer from the District Court of NSW to this Court; the absence of any delay that would be occasioned by the examination (or, alternatively, that the delay has mostly been occasioned by the refusal to attend earlier on request and the consequential necessity to agitate the motion); and, the absence of any evidence of prejudice. 6The plaintiff opposes the orders and relies on: the defendant's non-compliance with previous directions by which this evidence is now extremely late; non-compliance with other orders; delay in the proceedings generally; the continuing breach of orders that has prevented a hearing date being set; the delay in service of the cross-claim against a third party; the absence of evidence as to the utility of the orders; the existence of evidence already dealing with the areas of expertise qualified by the defendant; the necessity to respond to any further report and the delay occasioned by the clinically required gap in testing on account of the effect of one test or subsequent test; the absence of an explanation for the aforementioned delay; and prejudice by way of delay as a result of the test and any response thereto. 7Procedural fairness requires that every party have an adequate opportunity to prepare and to present its case. Procedural fairness does not require that a court or tribunal ensure that a party given such opportunities uses them to its best advantage. 8The first defendant has had an adequate opportunity in the past to examine the plaintiff and to obtain reports as a result of any such examination. It has not used that opportunity to the best advantage. The issue on this motion does not involve an application of the rules of procedural fairness. As a consequence, the issue falls for determination on the basis a discretion which the Court must exercise. 9The exercise of such a discretion is informed by the provisions of the Civil Procedure Act 2005, particularly ss 56-58 thereof. Those provisions impose a duty on the Court, legal practitioners and parties "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". In that regard, case management has become an increasingly important criterion. Nevertheless, the dictates of justice are the most important element, but the dictates of justice include the expeditious completion of proceedings. 10In these proceedings and in this application, I am not overly concerned with the delay between the time for compliance and the request for the further examination. If that were the only issue, I would grant the orders sought without much hesitation. 11But the delay between the time that compliance was required and the time it will occur is not the only delay that is relevant. A significant difficulty is that the examination that is sought is a four-hour examination the details of which have been sought but not provided. 12The plaintiff has already been the subject of a number of psychological tests administered by the two qualified experts (one each for the plaintiff and defendant). It is said that Professor Mattick has particular expertise because he has treated sufferers of post-traumatic stress disorder and depression and has knowledge about schizophrenia. It is seems that the examination will be four hours because it will involve neuropsychological testing. 13The plaintiff relies on an extract of NSW Motor Accident Authority Guidelines on Neuropsychological Assessment (the Guidelines) as an independent expert description of the practice effects of such testing. At page 7 of the Guidelines, the Practice Effects of such testing is described in the following terms: "Practice Effects Neuropsychological assessments are sometimes repeated to measure the change attributable to spontaneous recovery, treatment effects or deterioration in brain function. However, neuropsychological tests are unlike other medical tests such as blood tests or MRI brain scans. Such medical tests can be done at repeated intervals without one assessment influencing the other. In contrast, one occasion of neuropsychological testing can have a significant impact on the results of the subsequent occasion of testing. ... For this reason the number of occasions of testing should be kept to a minimum. A minimum period of 6 to 12 months between assessments is recommended." 14As a consequence, in the likely and usual event of the desire of the plaintiff to respond to any such report, the proceeding will be further delayed by at least 6 months and probably 12 months. 15Will the first defendant by prejudiced by an inability to conduct the examination and obtain the report? The first defendant has already qualified a psychiatrist, whose report has been served. The plaintiff has also qualified a psychiatrist. The plaintiff's other evidence in this area is not from qualified independent experts, but is evidence from treating specialists within the area. That latter evidence is of a different kind. 16Each qualified expert must have experience with post-traumatic stress disorder, depression and schizophrenia. It would be difficult to imagine expert psychiatrists who did not. Certainly, there is no evidence that the reports already filed do not cover the issues. Nor is there evidence that the psychiatrist already qualified has not dealt with all that is anticipated from Professor Mattick. 17Moreover, given the absence of detail as to the testing to be performed or the purpose of the examination, the Court is not satisfied that the appointment will produce any additional relevant material in the proceedings, other than another opinion on medical issues already traversed in expert reports. 18The fact that the proceedings have been transferred to this Court, having originally been filed in the District Court, does not affect the necessity for further evidence. Nor does it explain the delay between the day upon which the defendant's evidence was to be filed and the request for an additional examination for the purpose of adducing further evidence. 19The Court is not satisfied that a further examination should be ordered for the purpose of allowing the filing of evidence in breach of the timetable. A significant time has elapsed before the first request for the examination (10 August 2012) and after the time for filing the evidence in accordance with the timetable (initially 26 July 2011, then extended to 1 September 2011). The defendant had further opportunity to serve "supplementary" medical reports by 30 March 2012, but did not avail itself of that opportunity. Given the delay that will occur as a result of the grant of the orders sought (being the future delay) and the absence of detail of what additional information, if any, may be forthcoming and why it is necessary, I am not satisfied that the orders sought should issue. 20The Court makes the following orders: (1)Prayers 1 and 2 of the first defendant's motion, notice of which was filed on 26 September 2012, be dismissed; (2)Costs are the plaintiff's costs in the cause.