Commissioner of Police, NSW Police Force v Robinson

Background

1. The background facts to this appeal are set out in the Decision at [10] - [15] as follows: 10 After serving as a police officer with the NSW Police Force for two decades, in June 2011 Mr Robinson was retired on medical grounds. 11 Mr Robinson commenced proceedings in the NSW Industrial Relations Commission (IRC) under s 241 of the Workers Compensation Act 1987 (NSW) seeking reinstatement to his former position, asserting that he was fit for work as a police officer. 12 The IRC dismissed Mr Robinson's reinstatement application: Robinson v Commissioner of Police [2013] NSWIRComm 1027. Mr Robinson unsuccessfully appealed that decision to the Full Bench of the IRC: Robinson v Commissioner of Police [2014] NSWIRComm 35. 13 In January 2020, after working, apparently successfully, as a paramedic for several years, Mr Robinson re-applied to join the NSW Police Force. 14 As directed by the Commissioner, on 29 January 2020 Mr Robinson attended Dr Kyriakis for medical examination and assessment. Dr Kyriakis concluded that Mr Robinson was "currently medically fit and capable of performing all of the inherent requirements of policing and that he had a good recovery from his previous mental health condition, which has resolved". 15 On 30 January 2020, the Commissioner notified Mr Robinson that his application for employment had been refused, stating that he "considered himself bound" by the decisions of IRC, which he asserted were to the effect that "you are not fit to return to pre-injury duties or to any role within the NSWPF because of the risk of relapse of your psychological condition". In addition, the Commissioner stated that employment of Mr Robinson "would potentially raise a significant risk to the health and safety of the applicant and others".

The Reasoning of the Tribunal

1. The essential reasoning of the Tribunal in deciding to refuse to grant a stay is contained in paragraphs [37] - [47] of the Decision as follows: 37 I will address the submissions for the Commissioner in turn. 38 First, I have been referred to no authority one way or the other dealing directly with this novel issue. Therefore, in determining the Commissioner's application, I must seek to give effect to the "guiding principle" in s 36(1) of the NCAT Act, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 39 Second, there is no doubt that in this case the dictates of justice require that Mr Robinson submit to an assessment by an expert who will provide a report to the Commissioner. Mr Robinson consents to that course. This case is not on all fours with the facts in Hastwell, in which the plaintiff refused to submit to a medical examination. The principles outlined in Hastwell, in my view, when applied, do not support the Commissioner's position. 40 Third, Holshandon is a case which must be confined to its own facts. That is precisely what Adamson J sought to do. Adamson J was not working inductively to construct general principles from particular facts but deductively to apply general principles to a narrow and particular set of facts. Adamson J's particular concern was to ensure that the defendant's experts' assessments were not adversely affected by the hovering presence and potential interference of the plaintiff's expert. That is not analogous with this situation. In fact, it is quite the reverse. There is no evidence, or even suggestion, that recording the assessment will or could interfere with the Commissioner's expert's assessment. Nor is it suggested that the Commissioner's experts would not be prepared to undertake the assessment if it were to be recorded. 41 There is an obvious forensic interest and purpose in recording the interview, namely, to obtain an accurate record of what was said and done. Having an accurate record of the assessment is potentially as valuable for the Commissioner as for Mr Robinson. 42 Fourth, the argument that Mr Robinson's experts have not been recorded in the same way as he proposes the Commissioner's should be insinuates that there is some unfairness in this procedure applying only to one side's expert(s). But this is contradicted by the argument, also made by the Commissioner, that there is nothing untoward about the way Mr Robinson's reports have been produced. If the Commissioner is implying that Mr Robinson would receive an unfair forensic advantage by obtaining a record of the assessment, he has not said so directly or identified what that advantage is. In fact, to reiterate, having a record would be of potential benefit to both sides as well as to the Tribunal as the ultimate factfinder. 43 Fifth, it is curious that the Commissioner opposes recording of the assessment on the basis that, if there is argument about how the assessment was conducted, cross-examination will deal with the issue. In the early 1990s, following the High Court's decision in McKinney and Judge v The Queen (1991) 171 CLR 468; [1991] HCA 6, the NSW Police Force introduced video-recording of interviews with suspect and some witnesses. This was because the issue of 'verbals', or fabricated confessions, had become to be seen as undermining the justice system. At [13], [16], the High Court noted "as the means of recording become generally available, the absence of a recording will tend to bring the reliability of a confessional statement into issue … Audio-visual recording is one means by which a confessional statement may be reliably corroborated". In short, AV recording of an interview or conversation between police officers and suspects reduced unfairness to suspects and corroborated police when interviews were disputed. In my view, that is the legitimate forensic purpose of recording Mr Robinson's assessment. 44 Sixth, because of the impartial eye of an AV recording, the room for false claims (on both sides) and misinterpretation (on both sides) is radically reduced and the reliability of the evidence increased. For the reasons outlined above, having a contemporaneous AV record of the assessment is likely to protect the interests of all parties, reduce disputation and focus the parties on the real issues. Conclusion 45 It falls to the Commissioner to establish that the power to stay the proceedings should be exercised. 46 It is common ground that the Tribunal does not have power to compel a person to submit to a medical examination. However, as observed by the Full Court of the Federal Court in Hastwell at [35] "the practical effect of an order to stay proceedings may be to compel the applicant to submit to a medical examination, because the consequence of not doing so is that the action is stayed". In Starr v National Coal Board [1977] 1 WLR 63, Scarman LJ said at 68 that "a stay, if granted, either shuts out the plaintiff from the seat of justice or compels him against his will to submit to a medical examination and, of course, that is an invasion of his personal liberty". 47 Here, Mr Robinson has not refused to submit to an assessment by an expert nominated by the Commissioner. Rather, he has refused to submit to such assessment unless it is recorded and he is given a copy of that recording. The Commissioner has failed to demonstrate that recording the assessment would result in him being deprived of the opportunity to have Mr Robinson assessed by an expert chosen by him, or disadvantaged in some way, less still "irretrievably prejudiced". I am not persuaded that the dictates of justice warrant the exercise of the power to stay the proceedings either for three months or permanently.

Grounds of Appeal

1. The Appellant relied upon four grounds of appeal as follows: 1. The Tribunal erred in finding that there was no existing authority on the matter and failing to accept that the ordinary position was that an expert called by a party is to be made available for cross-examination and not be subject to any other or further conditions. 2. The Tribunal erred in finding that there would be no prejudice to the Appellant in requiring that the medical assessment by her chosen expert be video recorded with a copy of that recording being provided to the Respondent. 3. The Tribunal erred in finding that there is an obvious forensic interest and purpose in recording the medical examination of the Respondent by the Appellant's medical expert. 4. The Tribunal erroneously relied on the decision of McKinney and Judge v The Queen (1991) 171 CLR 468 (McKinney).

The Appellant's Evidence

1. Apart from the material that was before the Tribunal below, the Appellant sought to rely upon the affidavit of Ms Christa Lenard of 20 December 2021. Ms Lenard is a solicitor in the employ of Kingston Reid, who are instructed to appear on behalf of the Appellant in the proceedings. She deposes that on 10 November 2021, Ms Richardson of Kingston Reid had a telephone conversation with Dr Walker, the doctor of first choice of the Appellant, during which Dr Walker was asked whether he was willing to have his session with the Respondent recorded. He answered as follows: "Absolutely not. There is no way I would agree to that. A recording like that could be so easily used to attack me. Even when you assess someone with the best of intentions things on the recording can be so easily misconstrued. You might be able to ask Doron Samuell. I know he typically will let his sessions be recorded."
2. Subsequently, and in response to directions of the Tribunal that the Appellant put on her medical evidence, the Appellant arranged for a Dr Greenberg to assess the Respondent on 13 January 2022.
3. Mr Greenberg did not object to his examination of the Respondent being video recorded. The Appellant filed her notice of appeal on 20 December 2021, seeking to have the proceedings stayed until the Respondent agreed to a medical examination without a condition that such examination be video recorded.
4. The Respondent was willing to be examined by Dr Greenberg by video link on condition that such examination be video recorded.
5. Ms Lenard deposes that in the event that the Appellant is successful in her appeal, the Appellant will not rely upon the examination by Dr Greenberg, but will seek an examination free of a restriction that the examination be video recorded. The result will be that the Appellant may forfeit the medical costs of Dr Greenberg's medical examination if the Appeal is successful.
6. Subsequently, the Appellant was successful in having the directions as to the filing of the Appellant's medical evidence in the proceedings vacated. Consequent on that, the Appellant cancelled the medical appointment between Dr Greenberg and the Respondent. The Respondent was willing and able to attend but the appointment did not occur due to the cancellation of the appointment by the Appellant.
7. The introduction of new evidence, such as the affidavit of Ms Lenard, requires the leave of the Appeal Panel. The evidence that Dr Walker was not willing to have his medical examination of the Respondent video recorded was not before the Tribunal. No evidence has been placed before us as to why such evidence was not able to be obtained at the time of the hearing before the Tribunal.
8. Nevertheless, we note that the proceedings involve an interlocutory application for a stay. Such an application may be made more than once on the basis of new evidence. Accordingly, we think it best facilitates the just, quick and cheap resolution of the real issues in dispute between parties for us to allow the evidence of Ms Lenard in her affidavit and to deal with the question of whether or not a stay should be granted on the basis of the previous evidence and the new evidence placed before us.

Submissions of the Parties

1. Mr Seck of Counsel appeared for the Appellant. The essence of his submissions before us involved the following propositions: 1. First, the ordinary proposition is that a party is entitled to choose their own medical expert and that, absent good reasons, the other party cannot impose any condition on that expert's assessment which may possibly interfere with such medical assessment; 2. Second, the imposition of a requirement that the medical examination by the Appellant's doctor be video recorded, with the recording being made available to the parties, does cause prejudice to the Appellant, in that: 1. The Respondent has produced his own medical evidence without the relevant examination being recorded and this leads to a lack of parity and unfairness because the Appellant's doctor's examination of the Respondent will be subject to a different procedure; 2. The effect of the video recording will be that the Appellant's expert cannot conduct the examination in an open, free and unimpeded manner because of the risk of additional criticism or misunderstanding arising from analysis of the video recording compared to the Respondent's medical examination by the Respondent's expert; and 3. The practical consequence of the Respondent's condition as to recording the examination, is that it limits the Appellant's choice of experts such Dr Walker, the Appellant's first choice of medical expert. 1. Third, it was wrong for the Tribunal to take the view that there is an obvious forensic interest in recording the interview because only a medical expert is qualified to interpret in a report what is said and done during the interview, and that expert is already providing his or her evidence in the form of the report.
2. Mr Seck submitted that absent the Respondent being able to demonstrate good reason for requiring the medical examination to be video recorded, with the recording being available to the parties, a stay of the proceedings ought to have been granted for so long as this was made a condition by the Respondent to his examination by the Appellant's expert.
3. Mr Seck accepted that the Decision is an interlocutory one which requires leave to appeal. He submitted that leave to appeal should be granted for three reasons: 1. First, the issue is one of general and significant public importance in respect of whether a party can impose a condition that his or her medical examination by another party's medical expert should be video recorded with the recording being available to the parties; 2. Second, the Tribunal was wrong in its conclusion that the Appellant would not be practically disadvantaged and it was unreasonable of the Tribunal to assume that the Appellant's choice of expert would consent to the condition as to video recording. 3. Third, the decision to refuse the stay and the conclusions of the Tribunal create a clear injustice and causes practical prejudice to the Appellant by limiting or placing restrictions on the evidence it chooses to lead.
4. Ms Heath, of Counsel, appeared for the Respondent. She submitted, firstly as to leave, that there was no clear or substantial injustice demonstrated in the decision of the Tribunal to refuse the stay. In particular, the Appellant was able to obtain the services of Dr Greenberg and a medical examination under condition of video recording which could have been conducted by the time of this Appeal. There is nothing to demonstrate that there is any real, or any, prejudice in the Appellant having to use the services of Dr Greenberg as supposed to Dr Walker.
5. Otherwise, Ms Heath for the Respondent made a number of submissions in answer to the whole appeal.
6. First, the Appellant accepted on 18 November 2021 the Respondent's offer, thereby resolving the terms of the medical examination. Having agreed to the question of the manner of the Respondent's medical examination there is nothing left from which to appeal and no basis to seek a stay.
7. Second, in respect of ground 1, Ms Heath submitted that the Tribunal correctly observed that it had been referred to no authority one way or another dealing directly with the issue. Further, the Tribunal did explicitly consider the case of Hastwell v Kott Gunning [2021] FCAFC 70.
8. Third, in respect of ground 2, there is no evidence before the Tribunal below of any prejudice to the Appellant. Further, there remains no evidence or basis for the assertion that the video recording of the medical assessment would somehow impede an expert in preparing a report for the Appellant.
9. Ms Heath also referred to the standard rules which permit medical examinations to be ordered subject to the party concerned being entitled to have his or her own medical practitioner attend and observe such examination: see Uniform Civil Procedure Rules 2005 (UCPR) r 23.5.
10. Fourth, Ms Heath supported the Tribunal's findings at [41]. It is correct to say that there is a legitimate forensic interest in having the medical examination in question recorded and made available to the parties. As the Respondent submitted, the role of any expert report is to place the Tribunal in a position to form its own view of the facts and expert opinion evidence. The Tribunal is entitled to consider for itself any assumption or evidence on which the expert relies in forming an opinion. As the Tribunal below correctly observed (at [42]), the Tribunal is the ultimate fact finder.
11. Finally, Ms Heath submitted that there was no error in the Tribunal's observations on McKinney at [43].

Leave to Appeal

1. It is common ground between the parties that the decision under appeal is an interlocutory decision and the appeal to the Appeal Panel cannot be made without the leave of the Appeal Panel: see s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. In Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35], the Appeal Panel set out the principles applicable to the grant of leave to appeal from an interlocutory decision. The Appeal Panel stated that those principles include the following: 1. It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; 2. However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; 3. Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; 4. Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; 5. There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; 6. Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; 7. In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); 8. Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; 9. Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave.
3. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated some general principles in respect of the grant of leave at [84]: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
4. The Appellant contends that an issue of principle or questions of public importance or matters of administrational policy which has general application is involved in the Appellant's appeal. We accept that this is the case, given the way in which the Appellant has sought to argue the appeal.
5. In particular, the Appellant contends that the correct principle, which should have been adopted by the Tribunal below, is that a stay should be granted in any case where a party seeks to impose conditions on his or her medical examination by another party's expert, including a condition that the examination be the subject of video recording with the recording being made available to the parties. The only exception, so the contention went, was if there was clear and cogent evidence which would take a case out of the ordinary and justify the video recording of the medical examination.
6. The parties accept that there is no clear authority which would determine this issue so far as the practice and procedure of the Tribunal is concerned. We note that this issue may arise in the future.
7. Accordingly, it occurs to us that this issue of general application should be considered by the Appeal Panel so as to provide some guidance on the competing contentions.
8. In the result, we have decided to grant leave to appeal to the Appellant.

Caselaw

1. Section 29(2)(a) of the NCAT Act states: (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction - the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,
2. These proceedings are within the Tribunal's general jurisdiction. The term 'interlocutory decision' is defined in 4(1) of the NCAT Act to include: 1. The granting of a stay or adjournment.
3. It is common ground, correctly in our view, that the Tribunal has power to stay these proceedings: see Alexakis v Health Care Complaints Commission [2021] NSWCA 217 at [6].
4. The Appellant relied upon the Full Court of the Federal Court's decision in Hastwell v Kott Gunning [2021] FCAFC 70 at [38] - [44]. The relevant conclusion of the Full Court at [41] was that "[t]here can be no doubt, on the authorities as examined by his Honour, that that this Court has the power to grant a stay where an applicant fails to submit for a medical examination if the interests of justice require such a course in a given case."
5. We also consider that this Tribunal has the power to grant a stay "where a party fails to submit for a medical examination if the interests of justice requires such a course in a given case."
6. The Appellant relied upon the Full Court's decision in Hastwell at [38] where the Court referred with apparent approval to the remarks of the primary judge at [39]: 39 The importance of ensuring a just determination of a cause is the basis of such a stay. That was made explicit in Starr v National Coal Board. [1977] 1 All ER 243; [1977] 1 WLR 63. The facts were somewhat different to the present case, in that Mr Starr had agreed in principle to a medical examination, just not by the doctor whom the defendants had nominated. After examining the course of authority in the Court of Appeal, Scarman LJ said (at 70): So what is the principle of the matter to be gleaned from those cases? In my judgment the court can order a stay if, in the words of Lord Denning MR in Edmeades' case, the conduct of the plaintiff in refusing a reasonable request for medical examination is such as to prevent the just determination of the cause. I think that those words contain the principle of the matter. We are, of course, in the realm of discretion. It is a matter for the discretion of the judge, exercised judicially on the facts of the case, whether or not a stay should be ordered. For myself, I find talk about 'onus of proof' in such a case inappropriate. There is, I think, clearly a general rule that he who seeks a stay of an action must satisfy the court that justice requires the imposition of a stay.
7. Similarly, Scarman LJ at 71 stated: Similarly, the defendant can only be compelled to forgo the expert witness of his choice if justice requires it.
8. We note that the principles in Starr v National Coal Board were relied upon by Murphy J in Furesh (as Administrator of Intestate Estate of Slipcevich) v Schor [2013] WASCA 231; (2003) 45 WAR 546 at [68]. The Full Court in Hastwell at [41] stated that the primary judge's reasoning in applying the principles in Furesh 'cannot be faulted'.
9. We, similarly, accept as a general principle that this Tribunal may order a stay if a party unreasonably refuses a request for a medical examination which is such as to prevent the just determination of the cause so that the interests of justice requires the granting of a stay.
10. We note that these cases do not answer the issue here as to whether justice requires a stay to be granted where the Respondent seeks the medical examination in question to be video recorded and the recording be made available to the parties. In Starr v National Coal Board, the plaintiff, who was claiming damages against his employers for personal injuries, objected to an examination by the specific doctor chosen by the defendants, but was willing to be examined by any other doctor of similar qualification and experience. The Court of Appeal dismissed the appeal against the primary judge's order granting a stay.
11. In Hatswell the Full Court of the Federal Court declined to grant leave to appeal from the decision of the primary judge to grant a stay where the appellant refused to submit to a medical examination by a medical expert of the respondent's choosing.
12. Nextly, the Appellant relied upon the decision of Hall v Avon Area Health Authority [1980] 1 WLR 481. In that case the plaintiff sought damages for personal injury. The plaintiff agreed to be examined by an orthopaedic surgeon named by the defendant on condition that the examination take place in the presence of a doctor nominated by her solicitors. The primary judge held that the plaintiff's request that a doctor nominated by her should be present at the examination was reasonable and that she was only asking that a doctor be present to safeguard her interests, not to take part in the examination.
13. The Appellant relied upon the judgment of Stephenson LJ at 488 where Stephenson LJ refers to the passage of Scarman LJ in Starr v National Coal Board at [70] - [71], where it was stated that 'it is particularly important that the defendant should be able to choose his own expert witness if the case is one in which expert testimony is significant'.
14. Otherwise, the relevant parts of the decision of the judgment of Stephenson LJ relied upon by the Appellant was at 491 - 492 as follows: In my judgment, the court ought to have good or substantial reasons put before it on instructions or, in an appropriate case, on affidavit, if it is to impose conditions of this kind on a reasonable request for a medical examination of a plaintiff by a doctor nominated by a defendant. This is just as necessary in a case like the present as in cases, like Starr's [1977] H 1 W.L.R. 63, of out-and-out refusal. The judge rightly treated this conditional acceptance as a refusal of a reasonable request, but I cannot agree with his opinion that it was a reasonable refusal because the plaintiff was a woman of 52 or because the surgeon nominated by her solicitors might have testified to the inaccuracy of the other surgeon's report. Nor would it have been reasonable because in other cases other previously injured parties had been injured in their feelings by the way in which they were examined by other doctors for other defendants. All professions have their black sheep and good men have "off days." Courts of law, as well as the parties to litigation and their solicitors, must give a Fellow of the Royal College of Surgeons, of high standing in his profession of orthopaedic surgeon, credit for being fair and considerate in his treatment of those whom he examines on behalf of the other side and fair and accurate in his recording of such examination, and for needing no third party, whether medically qualified or not, to prevent him from misleading the court by inaccuracies or, I would add, to restrain him, as was suggested (though not by the judge), from confusing the party examined by unfair interrogation. None of the reasons advanced to support the practice, which alone can justify the judge's order, makes this plaintiff's conditional refusal to be examined reasonable or outweighs the disadvantages in increased expenses and delay which it may cause, even in such a simple case as this. I do not put into the scale the lack of reciprocity necessarily resulting, or the possible deterrent effect on the medical profession's willingness to take part in examinations of parties if they are required to hold a watching brief at an examination in which they take no part, because I think there is nothing in the first factor and not much in the second; though I may be under-estimating that consideration. I accept that the plaintiff's solicitors require this (I think) unreasonable condition in what they conceive to be the best interests of this plaintiff and other parties for whom they act. And I am not to be taken as saying that it would be unreasonable in every case or that it could never be imposed by a judge. I do, however, find it difficult to see what advantage a medical man has over a solicitor or a friend in the protection of a plaintiff from being harassed or disturbed or inaccurately reported. I cannot understand why a partner or legal executive in the firm of solicitors, handling this plaintiff's case as local agents, would not have secured the purpose of her union's solicitors better than Mr. Witherow, a specialist, who, by the accident of Mr. Hampson's death, was as unfamiliar to her as was Mr. McCormack, the health authority's specialist. What I have said about this condition is not intended to deprive the plaintiff of the help and comfort of any third party's presence at any medical examination by any doctor on behalf of any defendant. If, for example, the particular plaintiff were in a nervous state or confused by a serious head injury, or if the defendant's nominated doctor had a reputation for a fierce examining manner, or if the plaintiff asked for her nominated doctor to be present, it might be reasonable for her solicitors to insist, for her, on such a condition, though the need for it might often be met, I would have thought, by a joint medical examination, which was never suggested by the plaintiff's advisers and which Mr. Bailey submitted was something which the health authority's advisers ought to have suggested. But there is nothing of that kind here. On the bare facts of this case, and they are perhaps so bare as to make it a good test case, I can find no reason for not staying the plaintiff's action unless she submits to this examination by Mr. McCormack unconditionally.
15. The Appellant contended, by parity of reasoning, that the Tribunal should adopt the general proposition that to impose a condition that the medical examination should only take place if video recorded is unnecessary and unreasonable and a stay should be granted unless more is demonstrated.
16. In our view, there are a number of reasons why this decision is not particularly helpful or determinative of the issue before us.
17. First, although it is not applicable to the Tribunal, it is relevant that rule 23.5 of the UCPR states as follows: The person concerned may have a medical expert of his or her choice attend a medical examination under this Division.
18. The division provides at r 23.2 that any party other than the first party may serve on the first party a notice for the medical examination of the person concerned. The notice for medical examination is to be in the form of a request that the person concerned submit to an examination by a specified medical expert at a specified time and place. Further, rule 23.4 of the UCPR is as follows: 23.4 Order for examination (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.
19. Accordingly, the primary position under the UCPR is that the courts in NSW (which does not include the Tribunal) have the power to order a medical examination, which infringes personal liberties. However, this power is ameliorated by giving the person concerned the right to have a medical expert of his or her choice attend the medical examination ordered under the rules.
20. The Tribunal should take note of this practice which operates in the courts of New South Wales. The underlying policy behind these provisions should inform and guide the practice and procedure of the Tribunal as well.
21. In other words, as submitted by the Respondent, the prima facie position under the UCPR for the courts of NSW has put the conclusions and reasoning of the English Court of Appeal in 1979 in Hall v Avon Area Health Authority on 'its head'.
22. Second, in any event, the issue for consideration in Hall v Avon Area Health Authority was whether or not it was reasonable for a person concerned to request another medical practitioner of his or her choice to be present at the medical examination in question. This does not deal with the different question of the reasonableness of a request that the examination be the subject of a video recording.
23. In respect of r 23.5 of the UCPR, the Appellant relies upon the Supreme Court decision of Adamson J in Holshandon Pty Limited; Rankin v Eakin [2014] NSWSC 1028 where the court decided to dispense with the requirements in r 23.5 of the UCPR. In that case, the Court had before it the sworn opinions of two doctors that the psychiatric assessment of an individual, particularly in the context of a medico-legal assessment, would be seriously jeopardised, in terms of objectivity and reliability, by the presence of any third party.
24. Adamson J referred to the English Court of Appeal decision in Hall v Avon Area Health Authority and at [38] her Honour stated that r 23.5 of the UCPR 'may not be of general utility since it expresses the presence of a medical expert in terms of an entitlement'.
25. Ultimately, the Court dispensed with the requirement in r 23.5 of the UCPR because the Court was satisfied, for the reasons given by the two doctors who gave evidence, that there were substantial reasons for not permitting the plaintiff to bring another medical expert to such assessment. Adamson J at [41] accepted the experts' evidence that the presence of another medical expert would have the tendency to compromise the medical assessment in the circumstances of that case.
26. The Tribunal dealt with Holshandon at [40] as follows: Third, Holshandon is a case which must be confined to its own facts. That is precisely what Adamson J sought to do. Adamson J was not working inductively to construct general principles from particular facts but deductively to apply general principles to a narrow and particular set of facts. Adamson J's particular concern was to ensure that the defendant's experts' assessments were not adversely affected by the hovering presence and potential interference of the plaintiff's expert. That is not analogous with this situation. In fact, it is quite the reverse. There is no evidence, or even suggestion, that recording the assessment will or could interfere with the Commissioner's expert's assessment. Nor is it suggested that the Commissioner's experts would not be prepared to undertake the assessment if it were to be recorded.
27. We agree with this assessment of Holshandon. The case must be confined to its own facts. It does not assist in regard to the different question as to whether or not a condition that a medical examination be the subject of video recording is so unreasonable that the dictates of justice require that a stay be granted until that condition is no longer pursued.
28. A different approach was taken by the Western Australian Supreme Court in the decision of Brian v Regent Enterprises Pty Limited (1991) 3 WAR 552. Malcolm CJ said at 560: Where a person agrees to submit to a medical examination subject to a reasonable condition, that cannot constitute a refusal, if a person agrees to submit to an examination subject to an unreasonable condition that may constitute a refusal. Whether or not the condition is reasonable is a question of fact.
29. The Chief Justice went on to say at 564: In my opinion the question remains in each case whether the condition was reasonable in all the circumstances.
30. At 564-565, Malcolm CJ stated: Whether her apprehension was well founded or not, she was nervous or apprehensive about further examination … and needed reassurance. In my opinion, it is, in general, reasonable for such a person required to submit to a medical examination by a doctor chosen by a third party, to request that she be accompanied by a doctor of his or her choice, or another person such as a close friend or member of her family if he or she so chooses. The person who agrees to submit to a medical examination subject to such a condition cannot be said to have refused to submit to the examination.
31. Finally, the Appellant referred to the Western Australian District Court decision of Richardson v Whymark Nominees Pty Limited (2001) 27 SR (WA) 225; [2001] WADC 169. That case concerned a summons for an order that a plaintiff submit himself for a medical examination pursuant to O 28 of the Rules of the Supreme Court (WA). The plaintiff had previously been reviewed by Mr Brash, an orthopaedic surgeon. The defence intended to call Mr Brash to give evidence at the trial. The plaintiff was notified that a further medical examination with Mr Brash was requested in order to review the plaintiff prior to trial which had been listed for five days commencing on 6 August 2001.
32. The solicitors for the plaintiff wrote to the solicitors for the defendant stating that their client wished to video tape the interview and clinical examination in order to keep a true record of the proceedings. Mr Brash responded by saying that he found the suggestion of the consultation being recorded, either by audio or video, to be completely unacceptable to him. Mr Brash had already seen the plaintiff on two previous occasions where the consultation was not recorded.
33. The plaintiff put on evidence to the effect that on the two previous occasions of being medically examined by Mr Brash he was in the company of his father and Mr Brash acted in an abrupt and intimidating way. On the first occasion he was so badly handled by Mr Brash that he required extra analgesic medication and physiotherapy to reduce his symptoms after such examination. He said he was fearful about going for a review by Mr Brash as it may aggravate his medical condition.
34. The matter came on for urgent consideration prior to the trial date before Williams DCJ who dealt with the matter at [11]-[14] as follows: 11 In my view, the following matters are relevant: firstly, the fact that the request was made on 23 April 2001, that is, well before the trial date. It was appropriate, in my view, that the request be made. That request was accepted on 30 April 2001 without any reference to the video taping of the interview and clinical examination. It was not until 28 June 2001 that the condition is imposed. As I have said before, the trial date is 6 August 2001 for five days. 12 It is clear from Mr Brash's letter that he has taken advice on the matter and his view is that it is completely unacceptable. 13 Order 28 r 1A provides that a medical adviser, chosen by the party to be examined, shall be entitled to be present if the party so desires. In this case, the plaintiff has previously attended with his father and on neither occasion has he complained in the terms in his affidavit, sworn 5 July 2001. 14 In my view, taking all of those matters into account, I am of the view that it is not reasonable for the plaintiff to impose the condition that he did. I am therefore of the view that it is appropriate that I make an order that the plaintiff submit for a medical examination pursuant to O 28 of the Rules of the Supreme Court, that appointment being tomorrow 10 July 2001 at 10.30am. At that time, the plaintiff is entitled to take a medical adviser chosen by him and/or his father.
35. The Appellant accepted that the exposed reasoning in this case is insufficiently detailed to allow any general principles to be drawn which may be applicable to the case before us. It would appear that one of the reasons for not regarding the request for a video recording as being reasonable, was because the main complaint was that the medical examination may be conducted inappropriately so as to intimidate or even cause the plaintiff harm or fear. In such circumstances, the Court was right to conclude that such concern could best be dealt with by the plaintiff's entitlement to take a medical adviser chosen by him and/or his father to the medical examination rather than having the conference video recorded. Further, Mr Brash, who had already examined the plaintiff twice, gave evidence that he did not wish his examination to be video recorded.
36. The facts and circumstances of the case before us are quite different.

Consideration

1. In our view, it is important to note that an expert witness before the Tribunal may be subject to many conditions and rigours which can and may be imposed upon him or her pursuant to the duty to assist the Tribunal impartially.
2. The Tribunal has issued Procedural Direction 3 in respect of the giving of expert evidence. The Appellant submits that it is expected that the Tribunal will, in due course, be asked to direct that this Procedural Direction apply to the medical evidence given in the proceedings.
3. Paragraph 1 of Procedural Direction 3 states that 'it is important that experts' opinions are soundly based, complete and reliable.' By paragraph 3, if the proceedings involve complex or difficult issues, which is the case here, 'it is appropriate to require expert evidence to be prepared and presented in a manner which seeks to ensure its usefulness.' Paragraph 14 of Procedural Direction 3 states that an expert witness 'has an overriding duty to assist the Tribunal impartially'.
4. By paragraph 17, an 'expert witness must abide by any direction given by the Tribunal'. This may include a personal obligation to comply with directions of the Tribunal with respect to the timetabling of the filing of expert reports: see, for example, Macquarie International Health Clinic Pty Limited v Sydney Local Health District [2013] NSWSC 970. Accordingly, if the Tribunal were to issue a direction that a medical examination be video recorded, it would be the duty of the expert witness to abide by any such direction.
5. By paragraph 18 of Procedural Direction 3, an expert must comply with any direction of the Tribunal to confer with another expert or to prepare a joint report with another expert. The expert must endeavour to reach an agreement and exercise his or her independent professional judgment in relation to the issue. An expert report must comply with the matters set out in paragraph 19 of Procedural Direction 3, including setting out the facts, and assumptions of fact, on which the opinion in the report are based as well as the details of any examinations, tests, or other investigations on which the expert has relied.
6. By paragraph 23 an expert must abide by any direction of the Tribunal to attend a conclave or conference with any other expert; to endeavour to reach agreement on any matters in issue; to prepare a joint report and to give evidence concurrently with other experts. Such expert must exercise his or her independent, professional judgment in relation to such a conclave or conference and joint report and must not act on any instruction or request to withhold or avoid agreement: see paragraph 24 of Procedural Direction 3.
7. The result of this modern regime for the giving of expert evidence, is that the primary duty of the expert is to assist the Tribunal and for the expert to act in any way which may help the Tribunal to reach the best and most correct result on the matter the subject of the expert witness' expertise. An expert is not to hinder this process in any way.
8. Procedural Direction 3 makes it plain that no expert has a presumptive right to conduct an expert examination without any conditions if the Tribunal determines to impose conditions which may assist the Tribunal.
9. We turn now to examine the issue of the video recording of a medical examination. Given the way in which the Appellant seeks to argue the matter as one of general principle, we will consider the question, firstly, without regard to any of the evidence and then, secondly, by considering the effect of the evidence before us.
10. Where the question is whether or not a stay of proceedings should be granted, it is clearly for the party seeking such a stay to demonstrate to the Tribunal that the justice of the case requires such a stay. Generally, this will involve having to demonstrate that the party has been significantly prejudiced in its ability properly to defend itself in the proceedings such that a stay is required.
11. Where the issue is whether conditions being imposed by a party on his or her agreement to being medically examined by another party's expert, the Tribunal needs to look to the reasons being put forward by one side and the reasons against it on the other side. This should generally be done with a view to considering how the expert evidence in question can be presented in such a manner as to offer the greatest assistance to the Tribunal.
12. The condition here is that the medical examination be video recorded, and that the recording be made available to the parties. The first reason this is sought is to prevent an argument about what occurred at the medical examination. The second reason is that in having a video recording of the medical interview allows the basis of the expert's opinion to be fully exposed and able to be used in the proceedings by all experts and the Tribunal itself.
13. In our view, these reasons support the general conclusion that a video recording of medical examinations will improve the expert evidence's 'usefulness' and the expert's opinion being 'soundly based, complete and reliable'.
14. For example, the Tribunal will generally have a preference for direct evidence over indirect evidence or summaries or conclusions in respect of matters which may be the subject of potential controversy and dispute, such as what occurred at the medical examination. This may potentially reduce cross-examination and time spent at the hearing. Further, the Tribunal will also have a general preference for having available to it the complete basis for an expert's opinion if this can be done efficiently and economically. This will be the case with a video recording of a medical examination.
15. We agree with the comments in this regard made by the Tribunal below as follows: 41 There is an obvious forensic interest and purpose in recording the interview, namely, to obtain an accurate record of what was said and done. Having an accurate record of the assessment is potentially as valuable for the Commissioner as for Mr Robinson. 42 … In fact, to reiterate, having a record would be of potential benefit to both sides as well as to the Tribunal as the ultimate factfinder. 43 … In short, AV recording of an interview or conversation between police officers and suspects reduced unfairness to suspects and corroborated police when interviews were disputed. In my view, that is the legitimate forensic purpose of recording Mr Robinson's assessment. 44 Sixth, because of the impartial eye of an AV recording, the room for false claims (on both sides) and misinterpretation (on both sides) is radically reduced and the reliability of the evidence increased. For the reasons outlined above, having a contemporaneous AV record of the assessment is likely to protect the interests of all parties, reduce disputation and focus the parties on the real issues.
16. The Appellant suggested that only a medical expert is qualified to interpret in a report what is said and done during the interview. As explained above, this submission misunderstands the legal function of the Tribunal and the role of expert evidence before it. The role of an expert report is to place the Tribunal in a better position to form its own view of the relevant matters. The Tribunal is not only entitled, but is required, to consider for itself the facts and assumptions on which an expert report is based. For the reasons explained above, this is likely to be enhanced by having a video recording of the medical examination.
17. We turn now to consider the reasons the Appellant puts forward as to why a video recording of the medical examination should not be permitted. A video recording of the medical examination, it is said, 'will have the real effect that the Appellant's expert cannot conduct the examination in an open, free and unimpeded manner because of the risk that the medical examination will be tendered as evidence'.
18. We are not convinced that simply having the medical assessment video recorded prevents the examination being conducted in a proper and unimpeded manner. We note that the medical examination in question is not between the Respondent and his own medical practitioner. The medical examination is taking place in the context of, what would appear to be, bitterly fought adversarial proceedings. The Respondent is wary that the medical expert of the Appellant's choosing may simply be a 'gun for hire' who may not treat him fairly.
19. In such circumstances, in our view, a video recording of the medical examination will as much protect the interests of the medical expert as that of the Respondent.
20. Nextly it was suggested that the video recording of the medical assessment by the Appellant's expert, when the previous assessment by the Respondent's doctor was not video recorded, leads to an unfairness and a lack of parity, as the Appellant's expert will be exposed to additional scrutiny in the hearing compared with the Respondent's expert.
21. Again, we do not find this reasoning convincing. As pointed out by the Tribunal below, having the video recording is as much of benefit to the Appellant as the Respondent.
22. Turning to the evidence, such as it is, we note that at the initial hearing before the Tribunal below there was no evidence to support the proposition that a video recording would somehow interfere with the medical assessment or interfere with the Appellant's first choice of medical expert. This led the Tribunal to conclude at [47] that The Commissioner has failed to demonstrate that recording the assessment would result in him being deprived of the opportunity to have Mr Robinson assessed by an expert chosen by him, or disadvantaged in some way, less still "irretrievably prejudiced".
23. The above conclusion was plainly correct. This demonstrates that the dismissal of the application for a stay at the time was clearly free from any error.
24. At the hearing before us, the Appellant made use of evidence of a conversation with Dr Walker, the Appellant's medical expert of first choice. Dr Walker stated that he would not agree to the recording because it 'could be so easily used to attack me. Even when you assess someone with the best of intentions, things on the recording can be so easily misconstrued.'
25. We note that this was not the subject of any direct evidence from Dr Walker so that it could not be tested under cross-examination. Accordingly, it is difficult to give much weight to this hearsay evidence.
26. In any event, the first issue allegedly raised by Dr Walker is a fear that a recording could be used to attack him. This does not seem a legitimate reason to oppose a recording. For example, an expert may find him or herself being attacked in a conclave by another expert or by a legal representative under cross-examination. Such attacks may be vigorous and seek to impugn the expert's integrity and professional judgment.
27. An expert cannot seek to avoid potentially being 'attacked', provided the basis of such attack is legitimate. In our view, an attack on a medical expert based upon a video recording of his or her medical examination is legitimate.
28. Further, it is difficult to see how or why a recording of a medical assessment would expose the medical expert to greater attack than simply on his or her report.
29. Nextly, it is alleged that Dr Walker was concerned that a recording 'could be so easily misconstrued'. Again, we are unable to accept the legitimacy of this proposition. For example, a report which seeks to summarise what was said by the examinee and draw conclusions from it, can obviously also be misconstrued and be the subject of attack for being inaccurate or not a fair summary. It is difficult to understand how a recording of actual events can be said to be 'easily misconstrued'.
30. Accordingly, in our view, this evidence does not support the Appellant's case that a stay should be granted.
31. Nextly, the evidence reveals that the Appellant has available to her another expert, Dr Greenberg, who is willing to examine the Respondent and for such examination to be video recorded. There is no evidence before us that Dr Greenberg is in any way less qualified than Dr Walker or less able to assist the Tribunal on the questions of medical opinion relevant to the proceedings.
32. Accordingly, it remains the case, as assessed by the Tribunal below, that the Appellant has not demonstrated that it is in any way prejudiced by the Respondent's desire to have the medical assessment video recorded.
33. Finally, and for completeness, we deal with two different grounds of appeal raised by the Appellant. First, it was submitted that the Tribunal erred in allegedly concluding that there was no relevant authority. Rather, the Tribunal merely observed that it had 'been referred to no authority one way or the other dealing directly with' the issue. This was correct.
34. The Tribunal accepted that it had power to stay the proceedings if the dictates of justice required this. The Tribunal also dealt with some of the main authorities dealing with the general principles such as Hastwell v Kott Gunning [2021] FCAFC 70.
35. Accordingly, we reject this ground of appeal.
36. Lastly, the Appellant raises a ground of appeal that the Tribunal erred in referring to McKinney's case which dealt with the advantages of video recording interviews with suspects by the police. In our view, there is no error in so referring to McKinney. Some analogy can be made with the desirability of video recording interviews with suspects by the police. In both the case of a video recording of a medical examination and that of police interviews of suspects, there is an advantage in having the full details of the examination or interview available in order to avoid disputes.
37. Accordingly, we reject this ground of appeal.
38. In conclusion, we dismiss the Appeal.

Costs

1. The usual position in the Tribunal is that each party is to pay its own costs: NCAT Act, s 60(1). The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs: NCAT Act, s 60(2).
2. In case either party considers that special circumstances warrant an award of costs in this appeal, we will provide that the parties have the opportunity to put forward written submissions as to costs.

Orders

1. The orders are as follows: 1. Leave to Appeal is granted. 2. The Appeal is dismissed. 3. If either party seeks a costs order, the following directions apply: 1. The applicant for costs ('costs applicant') must file and serve a cost application, including submissions and any evidence in support, within seven days of the date of these orders. 2. The respondent of the cost application is to file and serve any submissions and evidence in reply within 14 days from the date of these orders. 3. A costs applicant is to file any submissions in reply within 21 days from the date of these orders. 4. Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), dispensing with the hearing of the cost application. .********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 22 April 2022