Solicitors:
Hudson Law Pty Limited (plaintiff)
Henry Davis York (defendant)
File Number(s): 2014/304560
[2]
Judgment (ex tempore)
HIS HONOUR: The defendant Westpac Life Insurance Services Ltd seeks an order that Angela Campbell attend an appointment with Dr Wilcox on 30 June 2015 and submit to psychiatric examination by Dr Wilcox and that the proceedings be stayed unless and until she attends such an appointment.
In the substantive proceedings, Angela Campbell Pty Ltd, in its capacity as trustee of the Halina Superannuation Fund, claimed, pursuant to its amended statement of claim of 28 April 2015, a declaration that Dr Campbell was totally and permanently disabled within the meaning of the relevant policy of insurance, damages or an order for payment of the sum insured, and alternatively an order that the defendant reconsider its decision of 21 February 2014 by which it decided that Dr Campbell was not entitled to payment of the TPD benefit. After the present motion was filed, it was indicated on behalf of the plaintiff that only the claims for relief in paragraphs 6 and 7 - that is to say, the order for reconsideration and costs - were pressed; but following further exploration of the issues in the course of argument today, I apprehend that both parties both accept, as the Court also considers, that this being an insurer case and not a trustee case, the Court is able to determine for itself whether the fact of total and permanent disability is established [see, for example, Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214, [35] (Santow JA)], and thus that the plaintiff will wish to prosecute all the claims for relief in the proceedings.
That means that there will be a relevant fact in issue in the proceedings as to whether Dr Campbell is totally and permanently disabled within the meaning of the policy. While a declaration to that effect is sought in paragraph 1, the fact of total and permanent disablement would be a material fact in connection with such a claim, and it is not pleaded in the amended statement of claim. The plaintiff accepts that it will need to amend to raise that issue, but also that in the light of that being an issue, on balance the interests of justice would be served by a further medical examination. The plaintiff has been once examined by a psychiatrist at the request of the defendant - not pursuant to the proceedings, but pursuant to a request made under the contractual right conferred by the insurance policy. However, there are, as I think the plaintiff came to accept once the report of Dr Lee was ultimately produced, shortcomings in that report which I think make it in the interests of justice that the plaintiff should submit to a further examination.
A question arises, however, whether an order can be made under (NSW) Uniform Civil Procedure Rules 2005, r 23.4, in connection with the examination of a non-party, Dr Campbell not herself being a party, but a member of the superannuation fund of which the plaintiff is the trustee, though also a person herself entitled to the relevant benefit under the insurance policy.
Previously, when there was no direct power to require the medical examination even of a party to proceedings, it was held that a medical examination could be enforced by staying the proceedings unless and until the plaintiff submitted to examination [see Baugh v Delta Water Fittings Ltd [1971] 1 WLR 1295; Edmeades v Thames Board Mills Ltd [1969] 2 QB 67, 71; [1969] 2 All ER 127]. For many years now, however, the rules have made specific provision for orders requiring a party to proceedings to undergo medical examination. Those rules are now found in UCPR, Pt 23. In terms, those rules are limited to the examination of a party to proceedings (with the exception of a person for whose benefit a party is claiming under the (NSW) Compensation to Relatives Act 1897). That the rules do not authorise the making of orders requiring persons not parties to undergo medical examination was pointed out in the Court of Appeal by Basten JA in Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59, where his Honour said (at [79]-[89]):
[79] Where a plaintiff sues for damages for personal injuries, it is usual for the defendant to require that the plaintiff be examined by its medical practitioners. Rules of court now provide that where the physical or mental condition of a party is relevant to a matter in issue, another party may seek to have the first party examined by its medical practitioners and, where the first party fails to comply with such a reasonable request, the court may dismiss the proceedings: Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), Pt 23, rr 23.1 and 23.9. Before such rules were promulgated, the court had no power to order anyone to submit to a medical examination, but could direct that an action be stayed unless the plaintiff submitted to examination by doctors nominated by the defendant: see Baugh v Delta Water Fittings Ltd [1971] 1 WLR 1295; Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 at 71 (Lord Denning MR). The court retains such a power.
[80] Court rules do not, however, extend to examinations of persons who are not party to proceedings, with one exception, being a person for whose benefit a claim is made under the Compensation to Relatives Act 1897 (NSW); UCPR, r 23.1(1)(b)(ii). No express power is conferred on a party (or the court) to require a person not a party to proceedings to undergo a medical examination. Nor is the indirect mechanism of ordering a stay available against a plaintiff, unless the plaintiff has some means to require the worker to undergo examination for the benefit of the defendant in the proceedings brought by it.
In that case, the question was whether the power given to an employer to have a worker in receipt of weekly compensation payments examined by medical practitioners from time to time provided a vehicle for such an order. The Court held that it did not, but the passage to which I have referred does not hold, as is suggested in the note in Ritchie's Uniform Civil Procedure NSW (LexisNexis), that there are no circumstances now in which an examination can be indirectly required by making the further conduct of the proceedings conditional on such an examination. To the contrary, his Honour expressly states that the Court retains the power to use the stay mechanism, but suggests that it will only be engaged if the plaintiff has some means of requiring the third party - in that case, the worker - to undergo examination for the benefit of the defendant.
In this case, the plaintiff is the trustee of Dr Campbell's superannuation fund; their interests are closely aligned. The proceedings are being prosecuted essentially for the benefit of Dr Campbell, and it seems to me that were it to come to the question of a stay, the interests of the trustee and Dr Campbell are effectively indistinguishable and no injustice would be done by staying the proceedings if Dr Campbell declined to undergo an examination.
The rules contemplate that a party requiring another to undergo a medical examination must cover, inter alia, the expenses of having a medical expert chosen by the person attend the examination, and that a medical expert chosen by the person to be examined must be permitted to attend. Whether it is possible now for the plaintiff or Dr Campbell to make arrangements for that to happen in the short time that remains available until the appointment is doubtful, but I will nonetheless make the order conditional upon payment of such a practitioner's expenses, in the event that it can be arranged by the plaintiff in time. In circumstances where notice of the medical examination was given months ago and objection to it raised only recently, I do not think that such difficulties as the plaintiff may encounter in finding an expert of its choice to attend the medical examination should be allowed to affect the order to be made.
While the statement of claim will require further amendment in the manner to which I have adverted, the present iteration of the defence, as will be apparent from the discussion that has taken place in the course of argument, raises issues which seem to me now to be false issues - if they were ever live ones - and to contain matters which are pleaded in inappropriate form; for example, the last sentences of paragraphs 9 and 10. There also appear to be a number of "non-admissions" of dubious content.
The Court orders that:
1. The plaintiff cause Dr Angela Campbell to attend for and submit to psychiatric examination by Dr Rosalie Wilcox on 30 June 2015 at 12.30pm.
2. The proceedings be stayed unless and until Dr Campbell attends such appointment.
3. The plaintiff file and serve a further amended statement of claim by 13 July 2015.
4. The defendant file and serve its defence to the further amended statement of claim by 27 July 2015.
5. The proceedings be adjourned to 3 August 2015 at 9.45 before me for directions.
[3]
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Decision last updated: 12 October 2015
Parties
Applicant/Plaintiff:
Angela Campbell Pty Ltd as trustee for Halina Superannuation Fund