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Judgment 1BASTEN JA: Mr Gulic claims to have suffered an injury in February 2010 whilst lifting a gate onto his truck. He has brought proceedings for damages against Boral Transport Pty Ltd ("Boral") in the District Court. If he succeeds on the question of negligence, Mr Gulic has substantial claims for economic loss and domestic assistance. 2The injury the subject of the claim is said to have affected his shoulders, head, cervical spine and thoracic spine, but not his lumbar spine. Many years earlier, in 1997, he suffered an injury to his lumbar spine. In order to determine the extent to which his disability and diminished earning capacity and capacity to look after himself, flowed from the 2010 injury, Boral sought to assess the current condition of his lumbar spine. 3Mr Gulic objected to undergoing an MRI scan of his lumbar spine. Accordingly, Boral sought an order pursuant to the Uniform Civil Procedural Rules 2005 (NSW) ("UCPR"), r 23.4, that he submit to such an examination at a specified place and within a specified period. 4The primary judge accepted that the rule covered an MRI procedure, in accordance with established authority: see Rowlands v State of New South Wales [2009] NSWCA 136; 74 NSWLR 715 at [31] (Hodgson JA, Allsop P agreeing and Tobias JA agreeing in this respect at [61]). Tobias JA continued at [61]: "Of course, as [Hodgson JA] observes at [35] ..., such tests must be relevant to the party's physical or mental condition where that is in issue in the proceedings. The rule cannot be used for a collateral purpose such as testing a party's credibility." 5The latter proposition (as to collateral purpose) was an extrapolation of the reasoning of Hodgson JA at [35], which was to the following effect: "There was also discussion in submissions of a possible distinction between tests that went directly to the medical condition of a party, and tests that merely went to the reliability of other tests. In my opinion, there is no sound basis for including the former type of tests and excluding the latter so long as the overriding purpose of the test is a medical examination, or bringing about a medical examination, when a person's physical or mental condition is relevant to a matter in question." 6In the present case, it would seem to be self-evident (and was properly conceded by the respondent) that the current state of Mr Gulic's lumbar spine will be of direct and immediate relevance in determining the extent to which his current incapacity (and likely future incapacity) was caused by the 2010 injury. Why, then, did the primary judge not make the order sought by Boral? 7There appear to be three answers to this question. First, the primary judge noted the submission for Boral as to the legitimate purpose of a further MRI of the lumbar spine: at [14]. In the following paragraphs, he articulated two interrelated reasons for rejecting the application. The first of these was that Mr Gulic bore the overall burden of establishing his case. To the extent that there was an absence of evidence as to the effect of the 1997 injury as at the time of trial, he anticipated that there would be "a significant gap" in Mr Gulic's medical case for ongoing economic loss and domestic care: at [16]. That, however, is not the issue: the fact that a plaintiff may fail on a particular point in the absence of sufficient supporting evidence, does not mean that a defendant cannot obtain an order for a medical examination to uncover the truth of the plaintiff's medical condition. To the contrary, the reasoning demonstrates both that the issue is material and in dispute and that such an examination is relevant to resolving the dispute. 8The second and related reason for rejecting the application, as articulated by Boral in this Court, was that, whilst Boral bore an evidentiary burden to demonstrate that Mr Gulic's current disabilities were partly due to a pre-existing condition, as explained in Watts v Rake [1960] HCA 58; 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; 114 CLR 164, there was already ample material to demonstrate such a pre-existing condition and the onus therefore shifted to the plaintiff to establish the degree of disability caused by the 2010 injury. 9This reasoning is also misconceived: the fact that a defendant has material available to it to support its case does not, in the absence of a concession or capitulation, demonstrate that there is not still a live issue. If there is a live issue as to the physical or mental condition of the plaintiff, to which a medical examination will be relevant, the rule is engaged. 10Thirdly, the primary judge stated at [13]: "There is no doubt on the material before me, in particular [Mr Gulic's histories] to various doctors, that questions could be asked of [Mr Gulic] going to his credit. A further MRI scan at this point in time could well bolster any attack on [Mr Gulic's] credit in relation to his back condition and capacity for work, if only unintentionally." 11Having addressed the two other matters dealt with above, the primary judge returned to this issue at [17]: "I also consider, in the circumstances, that a further MRI scan could well, if only by inference and unintentionally, be used for the collateral purpose of attacking the credit of the Respondent." 12The use of the adverb "unintentionally" in each passage indicates that this "collateral purpose" was not in fact a purpose underlying the application, but a consequential use to which the material might be put in the course of the trial. Evidential material may often have more than one use in a trial: so long as the "overriding purpose" in seeking an examination is to assist in determining an aspect of the plaintiff's physical or mental condition, that will satisfy the rule. Accepting the reasoning of Tobias JA in Rowlands, it is the application for an order which cannot be for a collateral purpose, such as to obtain material to allow the "testing of a party's credibility". The primary judge did not find that testing credibility was the overriding purpose of the application; the possible consequential use did not disqualify Boral's application in reliance upon the rule. 13No doubt, in some circumstances, there may be a lively issue as to whether, even though the rule is properly engaged, an order should be made. In an appropriate case, the existence of solid evidence available from existing tests will be a relevant factor. That may be combined with an examination which is demanding or intrusive, or one which may have consequences for the plaintiff's privilege against self-incrimination. This last consideration was present in Rowlands, but is not here. Nor indeed is the first consideration present. The last specialist medical report prior to the 2010 injury appears to have been an examination by Dr Giblin in July 2001 and the last MRI scan of the lumbosacral spine appears to have been in March 2000. 14As there was evidence that his lumbar condition was likely to deteriorate over time, the absence of up-to-date material as to the current extent of the disability resulting from the 1997 injury to the lumbar spine is significant. Although it does not appear to have been a critical issue before the primary judge, counsel for Mr Gulic raised in this Court the absence of any clear medical evidence demonstrating the need for an MRI scan at this stage. In particular, he noted that neither of the applicant's doctors who examined Mr Gulic had proposed such a scan. This consideration was not relied upon by the primary judge, but will be addressed further in due course. 15As to the second matter, namely the intrusiveness of the examination, it may be accepted that an MRI scan involves a degree of inconvenience and perhaps discomfort. However, the plaintiff had voluntarily undergone scans of his left shoulder, his right shoulder and his thoracic spine for the purposes of the claim. This factor was not relied upon by the primary judge and may be put to one side. 16Accepting that the application for the order involved a matter of practice and procedure and that this Court would not usually intervene, it is apparent that, for the reasons explained, the exercise of discretion in this case miscarried. It also appears that the cause of the miscarriage was, at least in part, a misapprehension as to the reasoning of this Court in Rowlands. Rowlands was an unusual case: this is not. It is important that the reasoning in Rowlands not be misunderstood. The matter is one which is appropriate for a grant of leave to appeal. 17Although the parties were originally advised that the matter would be listed for consideration of the leave application only, they were given 24 hours notice that, if the Court were satisfied that the matter was one appropriate for leave, it might proceed to deal with the appeal. Against this possibility, a direction was given by the Chief Justice, pursuant to s 46A of the Supreme Court Act 1970 (NSW), that the Court be constituted by two judges of appeal. 18The reliance by counsel for Mr Gulic on the absence of a clear indication by the applicant's experts that an MRI scan is now required needs to be addressed in this context. Boral relied upon three passages in the evidence of Dr Frank Machart, an orthopaedic surgeon engaged by Boral, in a report dated 12 April 2012. First, Dr Machart noted that Mr Gulic had advised him that he "did not have trouble with his neck, left or right shoulder, before the time of the injury on 04.02.2010". He continued: "He was not willing to provide details of an injury to the back. He said that he suffered an injury to his back 18 years ago. He gave me several reasons as to why he did not want to talk about it." 19What then followed were apparently the reasons supplied, namely that in Mr Gulic's opinion it was not relevant to his current medical examination, that he was under instructions from his lawyer not to "divulge information about the back injury", and that recalling it caused "mental anguish". Mr Gulic also claimed that the back pain had "settled down completely". 20Dr Machart had available to him the various earlier medical reports in respect of the 1997 back injury. His report of 12 April 2012 included the following question and answer: "3. Provide your opinion on whether the plaintiff's pre-existing injuries in his lumbar, thoracic and cervical spine would have likely prevented the plaintiff from working in a manual capacity in any event, irrespective of his alleged accident the subject of these proceedings. This is difficult to answer. I can only go on the expected prognosis documented by the doctors whose reports are attached to your letter of instructions. The lumbar condition was considered disabling into the future. I have not been given much added details to pass comments myself and therefore I can only go on the medical documents ... available to me." 21It is true that that report did not include a recommendation for an MRI scan of the lumbar spine. However, on 28 November 2012, in response to a letter from the solicitor for Boral, which is not before the Court but, it may be inferred, invited Dr Machart to address this point expressly, Dr Machart said that a "lumbar spine MRI may be useful in assessing the current lumbar spine condition". He then enclosed a referral, should the solicitor require that step to be taken. 22Counsel for Mr Gulic submitted that, in this state of the evidence, it had not been demonstrated that it was reasonably necessary to obtain such an examination. However, the preferable understanding of this material is that Dr Machart was unable to provide a satisfactory answer to the critical question and thought that an MRI examination may be useful in that regard. In the absence of any medical evidence to the contrary, the Court should infer that the proposed MRI scan is relevant to the assessment of the plaintiff's current and possible future incapacity, resulting from the 1997 injury and is likely to be of material assistance. 23For this reason, and for the reasons which have been given in respect of the grant of leave, it is apparent that the order made in the District Court refusing Boral's application by dismissing the motion was erroneous. A proper exercise of the power conferred by r 23.4 should have led to the making of the order sought. Accordingly, the appeal should be allowed and the orders made in the District Court on 7 February 2013, dismissing the motion and ordering Boral to pay Mr Gulic's costs of the motion, should be set aside. 24The Court enquired of the parties as to whether there was any practical reason why the matter should be remitted to the District Court to be reconsidered. The alternative course was for this Court to make the order sought by Boral in its notice of motion filed on 22 January 2013. No reason being identified as to why the matter should not be dealt with by this Court, the Court should make the appropriate orders. 25Accordingly, the Court makes the following orders: (1) Grant leave to Boral Transport Pty Ltd to appeal against the judgment and orders of Sorby DCJ delivered and made on 7 February 2013. (2) Direct that the applicant file within seven days a notice of appeal in the form of the draft notice of appeal appearing in the white folder. (3) Upon the undertaking by the solicitor for the applicant that the notice of appeal will be filed and any necessary fees paid, allow the appeal and set aside the orders made in the District Court on 7 February 2013. (4) In lieu thereof, make the following orders: (a) pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005, order that the plaintiff submit himself for an MRI examination of his lumbar and lumbosacral spine by City X-Ray within 28 days of the date of these orders; (b) stay the proceedings in the District Court pending the plaintiff's compliance with order (a), and (c) order that the plaintiff pay the defendant's costs of and incidental to the motion in the District Court. (5) Order that the respondent pay the applicant/appellant's costs in this Court. (6) Grant the respondent a certificate under the Suitor's Fund Act 1951 (NSW). 26MEAGHER JA: I agree. 27BASTEN JA (for the COURT): Following announcement of the orders counsel for Mr Gulic has proffered a letter from his instructing solicitors to the solicitors for Boral enclosing an offer of compromise in which his client sought, in effect, to accede to the orders sought in the proposed appeal but on the basis that each party pay his or its own costs, both in the District Court and in this Court. Because of the nature of the condition with respect to costs the offer would not appear to fall within the terms of UCPR r 20.26 but it is relied upon in the alternative as a Calderbank offer. 28The offer was not accepted, but in response there was a counter-offer which sought the same disposition, except that it required the plaintiff (respondent) to pay the appellant's costs of the motion to date. That offer was not accepted either. In the circumstances, the respondent has not achieved a result more favourable or even equally favourable to him as the offer he made because the order, as it presently stands, requires him to pay the costs of both the motion in the District Court and the proceedings in this Court. 29In those circumstances the appropriate order is that there be no variation of the order indicated.