Robert James Challis Parker v The Council of Barker College & Or [2015] NSWDC 225

District Court New South Wales

Medium Neutral Citation: Robert James Challis Parker v The Council of Barker College & Or [2015] NSWDC 225 Hearing dates: 1 October 2015 Date of orders: 02 October 2015 Decision date: 02 October 2015 Jurisdiction: Civil Before: Mahony SC DCJ Decision: First defendant's Notice of Motion dismissed For Orders see [45], [46] and [47] Catchwords: Stay of proceedings; chaperone to attend medical examinations Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 Cases Cited: Angliss v Urquhart [2001] NSWCA 441 Aspinall v Sterling Mansell Limited [1981] 3ORER 866 Holshandon Pty Limited v Eakin [2014] NSWSC 1028 Category: Procedural and other rulings Parties: Robert James Challis Parker (Plaintiff) The Council of Barker College (First Defendant) Representation: Counsel: J Young (Plaintiff) A S Morrison SC (First Defendant)

Solicitors: Hunt & Hunt Solicitors Medcalf Grant Legal File Number(s): 13/212325 Publication restriction: Nil

Judgment ON NOTICES OF MOTION 1. By Notice of Motion filed on 13 July 2015, the first defendant in this matter seeks the following relief: 1. "That pursuant to s 67 of the Civil Procedure Act 2005 NSW (CPA) and rule 23.9 of the Uniform Civil Procedure Rules 2005 NSW (UCPR) the proceedings be stayed unless and until the plaintiff complies with the Court's Orders made 26 February 2015. 2. That pursuant to s 14 of the CPA, the Court dispenses with r 23.5 of the UCPR and directs the plaintiff to attend all future medical examinations arranged by the first defendant without a medical expert. 3. The plaintiff to pay the costs of the first defendant of this Notice of Motion and its costs incidental to the Notice of Motion. 4. Any other order the Court deems fit." 1. By Notice of Motion filed on 19 June 2015, the plaintiff seeks the following orders: 1. "The scope of any medical examination of the plaintiff by the first defendant's medical experts be consistent with the requirement of Rule 23.4(2) Uniform Civil Procedure Rules 2005 that anything the plaintiff is asked to do, or any questions the plaintiff is asked to answer must be reasonable having regard to the particular circumstances of this matter. 2. The duration of any further medical examination of the plaintiff by Dr Wendy Roberts to be limited to one hour. 3. The plaintiff to have a medical expert of his choice attend with the plaintiff at any medical examination of the plaintiff by the first defendant's medical experts. 4. The first defendant to pay the costs of the plaintiff of this Notice of Motion and its costs incidental to the Notice of Motion. 5. Any other order the Court deems fit." 1. By way of background, the plaintiff claims damages for personal injuries suffered by him as a result of alleged sexual assaults which occurred when he was a student at the first defendant's school in 1973. On 26 February 2015, the following orders were made by consent: 1. "Orders 2, 3 and 4 of the Notice of Motion. 2. Costs of medical attendances for first defendant to be reserved. 3. Note agreement of the parties that a video of the interview between Dr Samuell and the plaintiff is to be used only if a complaint is made by the plaintiff about anything Dr Samuell did or said in the course of the interview and copies of the record are to be half in Dr Samuell's medical file and in sealed envelopes by the first defendant and the plaintiff. 4. Stood over for mention/directions on 25 June 2015." 1. Those orders followed an application by the first defendant by Notice of Motion for orders that the plaintiff attend medical examination with Dr Wendy Roberts and Dr D Samuell, and co-operate with those experts. 2. The plaintiff relied on the following affidavit evidence: Affidavit of Catherine Fox sworn 17 December 2014 Affidavits of Dr Wendy Roberts sworn 19 January 2015 and 29 September 2015 Affidavits of Lauren Boyd affirmed on 19 June 2015 and 28 September 2015. 1. Miss Fox and Miss Boyd were both required for cross-examination. Their evidence is referred to below. 2. The plaintiff relied on the following affidavit evidence: Affidavit sworn by Phillipa Grant dated 20 July 2015 Affidavit of Dr Richard Furst sworn on 13 July 2015 Affidavit of the plaintiff, Robert Parker, sworn on 10 July 2015 1. The plaintiff was cross-examined and his evidence is referred to below. 2. I have read all of the affidavit evidence. It is unnecessary to set out a summary of the evidence for the determination of the issues between the parties. Further, those issues have been narrowed by an agreement between the parties that Dr Samuell may video his examination of the plaintiff in these terms: "As noted in the consent orders and in addition, Dr Samuell will permit the plaintiff to place the video camera wherever he wishes in the room, provided it shows the plaintiff's examination." 1. The issues to be determined therefore are: 1. Whether on the first defendant's application there should be a stay of proceedings pending completion of the medical examination of the plaintiff by the first defendant's medical experts, Dr Roberts and Dr Samuell. 2. Whether the examination of the plaintiff by Dr Roberts should be restricted to a period of one hour only. 3. Whether the plaintiff be directed to answer questions from the first defendant's medical experts about the nature of the sexual assaults he alleged occurred to him, the details of those assaults, the process by which he recalled those assaults and the effect of the assaults on him. This involves consideration of r 23.4 UCPR. 4. Whether the plaintiff is entitled to have present, at the time of his examination by any expert for the first defendant, a support person, being a medical practitioner who is otherwise unrelated to the proceedings. This involves consideration of r 23.5 UCPR. 1. Generally, in relation to the medical examinations, the plaintiff, by his counsel, informed the court that the plaintiff was prepared to talk to both doctors qualified by the first defendant about what happened to him in a "broad sense".