Proposed grounds 10, 13 and 14
125 It is convenient to deal with proposed grounds 10, 13 and 14 together. Each of these grounds is accompanied by lengthy particulars, much of which have already been comprehensively covered by the preceding grounds. Indeed, proposed ground 10 on its face appears to be a reformulation of ground 1 that draws together Mr Hastwell's arguments under the other grounds:
Ground 10 - Permanently staying proceedings is not a just determination of the interlocutory application
10. His Honour erred in law by ordering a permanent stay of proceedings as a just determination of the application if [Mr Hastwell] did not consent to being medically examined at the request of [Kott Gunning] because:
(a) His Honour has not properly considered rules of evidence including ss 75, 79, 108C, 135, 138 & 192 of Evidence Act 1995 (Cth);
(b) His Honour has referred to Dr Parmegiani and his report throughout his findings which has tainted the whole judgment;
(c) the court should be more open to [Mr Hastwell's] hesitancy in being medically examined at the request of [Kott Gunning] given [Mr Hastwell's] claims that [Kott Gunning] has interfered in the medical process on a number of occasions by unethically approaching treating doctors and psychologists, to date;
(d) [Kott Gunning] failed to explain its associations with Dr Tony Mander considering [Kott Gunning's] dominance within the medico-legal field;
(e) [Kott Gunning] failed to disclose its proposed instructions to be put to any medico-legal practitioner nominated by [Kott Gunning] because it is inappropriate for [Kott Gunning] to include its own witness testimony in instructions if [Mr Hastwell] is to be assessed regarding the effects of [Kott Gunning's] treatment of him;
(f) it is a factual error to say that [Mr Hastwell] simply refused to be medically examined when [Mr Hastwell] gave a number of reasons why he would not consent to being medically examined and it was [Kott Gunning's] refusal to even consider addressing those objections;
(g) with regards Dr Parmegiani's report, it is open for [Kott Gunning] to seek to have privilege waived, which [Kott Gunning] has chosen not to exercise to date;
(h) [Mr Hastwell] only became aware of issues regarding credibility and s 108C Evidence Act 1995 (Cth) on the date of hearing and it would be prejudicial to [Mr Hastwell] to have extracts of Dr Parmegiani's report included with any instructions to Dr Mander or any other medico-legal professional because that would be prejudicial and misleading. Further, it is inappropriate to ask a medico-legal doctor on whether [Mr Hastwell] has been truthful based on s 108C Evidence Act 1995 (Cth), or at all.;
(i) no consideration was given by [Kott Gunning] to who would pay for any medical consultation and report;
(j) [Kott Gunning] must merely disprove the facts that [Mr Hastwell] says gave rise to his (exacerbated) anxiety and depression and therefore a medical examination at the request of [Kott Gunning] is not necessary;
(k) permanently staying proceedings is a disproportionate way to resolve this dispute. The court has the power to manage this dispute more equitably, particularly considering the claim arises under the [AHRC Act].
126 Proposed grounds 13 and 14 are more specifically directed to the primary judge's characterisation of Mr Hastwell's conduct as a "refusal" to be medically examined by Dr Mander (Kott Gunning's nominated psychiatrist). He says the primary judge failed to take into account the "very real possibility" of an apprehension of bias or conflict in Kott Gunning instructing Dr Mander given Kott Gunning's dominance in the medico-legal field in Perth. He says his objections to being examined by Dr Mander should have been held to be reasonable, while Kott Gunning's conduct has been unreasonable. In this regard, Mr Hastwell repeats his concerns about the specific instructions Kott Gunning would give to Dr Mander, including questions about the factual scenario that Dr Mander would be given since Kott Gunning deny that most of the events took place and need only disprove them. Significant concerns are also expressed about the possibility that extracts from Dr Parmegiani's report could be used to instruct Dr Mander. Each of these strands culminate in the submission that it was an error for the primary judge to find that Mr Hastwell simply "refused to submit" to an examination and that the order of a permanent stay was not a just determination of the proceedings.
127 It is important to recognise that whether to order a stay and whether a stay should be "permanent" was in each instance a discretionary decision. It is not enough, therefore, that an appellate court would consider that if it had been in the position of the primary judge it would have taken the different course. There must have been some error described as a House v King error (House v The King (1936) 55 CLR 499 (at 504)) as discussed by the Full Court (Jagot, Yates and Bromwich JJ) in Reckitt Benckiser (at [47]-[53]):
47 The High Court's statement in House v The King (1936) 55 CLR 499 at 504-505 is that:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
48 In Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission [2016] NSWCA 298, Leeming JA, with whom McColl and Gleeson JJA agreed, said:
[51] Two things of present importance emerge from the reasons of Gummow ACJ, Kirby, Hayne and Heydon JJ in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar (2008) 237 CLR 66; [2008] HCA 42. The first is the proposition accepted at [120] that:
when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious.
[52] The second is the explanation of the nature of the "orthodox approach to appellate intervention in relation to discretionary decisions" described at [137]-[138]. There it was pointed out that the expression "balancing exercise" is one to be employed with care, and that where (as in the present case) no statute mandates that particular weight be given to any one factor:
[T]he question of what weight the relevant factors should be given or what balance should be struck among them is for the person on whom the discretion is conferred, provided no error of law is made, no error of fact is made, all material considerations are taken into account and no irrelevant considerations are taken into account, subject to the possibility of appellate intervention if there is a plain injustice suggesting the existence of one of the four errors just described even though its nature may not be discoverable, or if there is present what has come to be known as 'Wednesbury unreasonableness'.
[53] The same passage confirms that it is wrong to apply the words from House v R in isolation, as if they were not qualified by an absence of reasons explaining how the decision was reached. Park Trent's selective statement of the principle upon which it relied has a tendency to dilute the test. The entire relevant passage from House v King, which was restated in the passage from Macedonian Orthodox Community Church St [P]etka Inc v His Eminence Petar, was as follows:
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Of course, that is not the present case, where the reasons of the primary judge are elaborate.
49 This is not to say that elaborate reasons are immune from appellate review. In the absence of specific error, the outcome reached either will or will not be one which was reasonably open. If not reasonably open, elaborate reasons will not protect the result from appellate intervention.
50 Accordingly, error is not involved merely because an appeal court would have reached a different conclusion.
51 Error may be specific, in the sense of apparent on the face of the reasons given, such as by application of a wrong principle in reaching the result (which may be evident by the primary judge addressing the wrong question), reaching the result by taking into account something that should not have been considered or by failing to take into account something that should have been considered, or by making a determinative error on the facts in the sense that the factual finding was not properly available to be taken into account in a way that affected the outcome.
52 Alternatively, error may be inferred from a result that cannot have been arrived at without some kind of operative error. The influence of the reasons given for the result arrived at on this process will vary. Reasons are not to be ignored, but nor do they necessarily confine in a rigid or inflexible way the scope of the appellate inquiry. It may be legitimate to have regard to what was said and not said in order to identify how the asserted erroneous result was reached. But for error to be inferred from the result, the result must be one which was not open on the evidence or facts found or agreed.
53 In all cases of specific error, the error must have either caused or materially contributed to the result. An error which has not in some material way affected the outcome will ordinarily result in the appeal court declining to intervene, at least as to the result.
128 A consideration of these principles makes clear that the primary judge did not misdirect himself. His Honour referred to a number of authorities for the proposition that a court can order a stay if the conduct of the plaintiff in refusing a reasonable request for a medical examination is such as to prevent the just determination of the cause. In addition to the authorities cited by the primary judge, there is also support to the same effect to be found in Prescott v Bulldog Tools Ltd [1981] 3 All ER 869 (at 874 and 876); Campbell v Biernacki (2009) 19 Tas R 345 (at [20]-[26]) which suggests that a stay of proceedings should be ordered and Furesh v Schor (2013) 45 WAR 546, where the Court of Appeal of the Supreme Court of Western Australia said (at [72]-[74]):
72 The distinction between positively ordering a plaintiff to submit to a medical examination, and directing that the action be stayed unless and until the plaintiff submits to a medical examination, was referred to by Basten JA (Giles JA agreeing), albeit in obiter observations, in Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council (2009) 230 FLR 336 at [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."
(Emphasis added [in the original].)
73 Edmeades v Thames Board Mills Ltd [1969] 2 QB 67, referred to in both Starr v National Coal Board and Kurnell v Randwick, was a case in which an employee brought an action against his employer for injuries sustained at work. Liability was admitted and the only question was as to the assessment of damages. The report from the employee's doctor contained particulars of an injury that had not been made in the statement of claim. The employer applied for a stay of proceedings until the employee submitted to a further medical examination by one of six named doctors. The Court of Appeal granted the stay. Lord Denning MR (Davies and Widgery LJJ agreeing) said (at 71):
"I do not think legislation is necessary. This court has ample jurisdiction to grant a stay whenever it is just and reasonable to do so. It can, therefore, order a stay if the conduct of the plaintiff in refusing a reasonable request is such as to prevent the just determination of the cause. The question in this case is simply whether the request was reasonable or not."
74 Widgery LJ also observed (at 72-73):
"I can see the objections that would be raised if it were sought to give the court power to make a direct order for medical examination with, presumably, power to commit the plaintiff for contempt if he refused. But none of those objections, to my mind, arise where it is sought to give the plaintiff a right to elect between not going on with his action, or submitting himself to medical examination, especially where his refusal to be examined is based on no reason and will result in the defendants being unable to prepare their defence, and will thus result in the court being unable to do justice towards the defendants."
(Italic emphasis in the original, bold added.)
129 As the primary judge noted, each case depends on its own facts. His Honour carefully considered each of the reasons which Mr Hastwell gave at the hearing for refusing to be examined and, correctly, rejected those reasons. Indeed, in the course of oral submissions on appeal, Mr Hastwell accepted that his Honour did accurately record in the primary judgment each of Mr Hastwell's objections to being medically examined. It cannot be said that the primary judge overlooked or mistook any of Mr Hastwell's objections. To the contrary, his Honour did recognise the importance of a litigant's right to personal liberty at [32]-[35] and [40] which have been set out above, and at [43], where his Honour said:
43 As for the broader argument about human rights, in McKinnon v Commonwealth of Australia [1999] FCA 717 at [6] Branson J (Finn and Emmett JJ agreeing) described as 'entirely without merit' a contention that the requirement for the applicant to attend reasonably required medical examinations was an infringement of his 'substantive right to civil liberty'. But, as I have indicated, this does not mean that the law concerning orders of the kind sought here disregards the importance of that right. There is, however, another right involved. The question can be framed in a different way: should a respondent be exposed to the possibility of a compulsory order of the court requiring it to provide remedies to an applicant without giving that respondent the opportunity to defend itself on the basis of such relevant and admissible evidence as it chooses to advance?
130 However, the primary judge also recognised that there is another right involved, being the right of a litigant to defend itself, including by choosing and calling its own expert witnesses. Those passages of his Honour's reasons (at [40], [43] and [59]) are also set out above and at [64], his Honour said:
Here, there was nothing before the court capable of establishing that Mr Hastwell's apprehensions were reasonable. No evidence was put before me of Dr Mander's experience and particular qualifications, but Mr Hastwell did not take issue with the description of him in Kott Gunning's letter of 24 July 2019 as a consultant psychiatrist. Justice requires that a defendant (or plaintiff) have the ability and right to choose a medical witness in whose … forensic ability and expertise it has confidence: Gray v Hopcroft [2000] QCA 144 at [15] (Ambrose J, Thomas JA and Helman J agreeing). I do not accept Mr Hastwell's stated objections to Dr Mander in particular.
131 The primary judge was correct to describe this as being "fundamental to a fair trial". His Honour was also correct to conclude (at [72]-[73]) that the trial would not be fair unless Kott Gunning was able to have Mr Hastwell examined in order to adduce its own medical evidence and that a stay was therefore inevitable. Mr Hastwell still proposes relying upon his own expert evidence at trial, which includes the opinion of an occupational physician (as distinct from a psychiatrist) that, as a result of a four hour interview, she was not under the impression that Mr Hastwell was paranoid. That view may be entirely correct. It may not be. That is not the issue. It is fundamental that Kott Gunning be able to have its own expert evidence and it is quite unrealistic to suggest that expert evidence of a psychiatric nature on such topics could be given without the benefit of interviewing the person concerned. If it was necessary for Mr Hastwell to be so interviewed to adduce his own evidence, it is reasonable to expect the same or similar opportunity to be afforded to Kott Gunning, especially having regard to the nature of the allegations and the availability of other evidence providing a reasonable basis for a request for Mr Hastwell to submit to an examination.
132 Having addressed each of these objections in detail, and in relation to ground 13 specifically, it is plain that the primary judge's assessment of Mr Hastwell's conduct as a "flat refusal" to being medically examined does not have the meaning which Mr Hastwell seeks to import. His Honour was not suggesting that Mr Hastwell did not have reasons, compelling or otherwise, for resisting examination. Rather, his Honour was accurately describing Mr Hastwell's in-principle refusal to being examined by Dr Mander or any practitioner instructed by Kott Gunning on any terms. Mr Hastwell made it plain in the hearing before the primary judge that his case is that any problems Kott Gunning has with Mr Hastwell's own medical evidence can be discredited by them in submissions and cross-examination such that there is simply no need for them to adduce their own evidence. As we, and the primary judge have sought to explain, this position is in direct contradiction to the weight of principle that it is a fundamental right of a defendant that they be permitted to adduce relevant and admissible evidence in defence of the claim made against them. Such a right is essential to the just determination of proceedings.
133 As to the form of the primary judge's orders, although the stay is described as being "permanent", the reality is that any stay may be revoked for good reason. A permanent stay should only be granted if it is the only fair and practical way of ensuring justice between the parties as noted in Rozenblit v Vainer (2018) 262 CLR 478 (at [34] and [100] and [75]-[76]). At [75]-[81], the primary judge carefully considered these factors, saying as follows:
The form of the order
75 There are three questions about the form of the order which need to be addressed.
76 The first, recognising that a comprehensive stay is a 'somewhat strong course', is whether justice can be achieved by taking the lesser course of staying the proceeding only in so far as it concerns the alleged anxiety and depression, and preventing Mr Hastwell from adducing medical or psychiatric evidence, including the report of Dr Hollo, unless he consents to being examined by a practitioner nominated by Kott Gunning. Kott Gunning's interlocutory application raised a similar order as an alternative to the comprehensive stay which it primarily seeks, although it did not pursue that alternative at the hearing.
77 In any event I will not make an alternative order of that kind. That is for three reasons. The first reason is that it will not remove the question of Mr Hastwell's psychiatric condition as an issue raised on the pleadings. The second reason, which is related to the first, is that it would require the parties and the court to proceed with a kind of truncated trial on the other issues only. There would be an air of artificiality, to say the least, about a trial which avoids the question of what consequences the acts of Kott Gunning and their staff had for Mr Hastwell's mental health, if those acts are established. It would not be possible to determine how those acts affected his earning capacity. The court would be determining only some of the true issues in the case, and on the basis of limited evidence. The resulting remedies, if awarded, would lack the practical usefulness of an award of damages. The whole process would be manifestly unsatisfactory.
78 The third reason I have rejected the possibility of, in effect, a stay of part of the action, arises from the report of Dr Parmegiani. Kott Gunning wish to have Mr Hastwell medically examined so that it can adduce evidence as to whether his psychiatric condition affects his ability to give credible evidence. That potentially affects the whole of Mr Hastwell's application. Determination of the many factual issues as to whether the alleged unlawful conduct occurred will depend to a large extent on Mr Hastwell's evidence. That is another reason why it would not be appropriate to make orders which merely prevent Mr Hastwell from adducing his own medical evidence.
79 The second question about the form of the order was raised by a submission on behalf of Kott Gunning that the stay should be a permanent stay. Senior counsel expanded on that by saying that it would be unfair to grant a stay which only applies unless and until Mr Hastwell agrees to attend a medical examination. He has been emphatic that he will not consent to the examination. A temporary stay 'would leave the matter in limbo' and leave it open to Mr Hastwell to seek to revive the matter without notice years in the future. It was submitted that would be unfair to Kott Gunning, which is comprised of a small number of equity partners, as well as to the large number of witnesses who may need to be called. Also, the longer the matter is unresolved, the more the memories of the large number of witnesses will fade.
80 I accept that these consequences would be left open by any temporary or conditional stay of the sort that Kott Gunning oppose. I also accept that they are consequences which should be avoided. I am satisfied that it would not be appropriate to stay the proceeding pending any particular development indicating that Mr Hastwell has relented in his opposition to being examined by a psychiatrist. I will therefore not make the proposed stay temporary or conditional. It may be that it is a moot question whether the stay is properly described as a permanent stay: see Brookfield v Davey Products Pty Ltd [2001] FCA 104 at [27] Mansfield J. However that terminology is commonly used, and in my view is an appropriate recognition of the principle that it is desirable that litigation, once apparently finished, ought not lightly be reopened: see Lambert v Mainland Market Deliveries Ltd [1977] 1 WLR 825 at 833.
81 The third question about the form of the order arises because the minute of proposed orders which Kott Gunning submitted contemplates that the stay will take effect unless Mr Hastwell consents to a medical examination within 14 days and subsequently cooperates. That would have the effect of a self-executing order in circumstances where there would be ample room for disagreement about whether the conditions for it to execute have been fulfilled. In my view it is appropriate, instead, simply to order that the proceeding be stayed after the lapse of a period of time which permits Mr Hastwell to consider his position and, if he chooses, to agree to a medical examination. Express liberty to apply before that time expires should be given. Then, if Mr Hastwell does take steps to indicate that he will submit to the examination, he may apply with suitable evidence, for the stay order to be vacated, or for the time before it takes effect to be extended, or such other order as is appropriate in the circumstances. While it is often undesirable for the court to undertake the level of supervision that may entail, in my view that is preferable to an order which operates inflexibly in the absence of 'cooperation', a word which is unavoidably indeterminate. Given the potentially serious consequences for Mr Hastwell, the period before the stay takes effect will be 28 days.
134 The primary judge was right to conclude that a permanent stay was appropriate for the reasons his Honour gave. Mr Hastwell had had 10 months to consider his position. The proceedings involved events between 2013 and April 2015. While much of the focus has been on Mr Hastwell, it must also be recalled that there are individuals comprising a partnership in Kott Gunning against whom serious allegations were made. It would have been unfair to those persons and the large number of witnesses to allow the matter to remain in limbo, leaving it open to Mr Hastwell to revive the matter if and when he chose to agree to be examined. To do so would be contrary to the overarching purpose of the civil practice and procedure provisions to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.
135 Moreover, the primary judge did give Mr Hastwell a final opportunity to agree to be examined, which he did not take. Mr Hastwell contends that the primary judge should have "case managed" the situation. Attempts to do so over a 10 month period were clearly to no avail. Mr Hastwell was at all times resolute in his refusal to be examined. In particular, he refused to be examined if any aspect of the examination would involve any expression of views as to his reliability or credibility. It was plain from other exchanges that Mr Hastwell would refuse to be examined by any psychiatrist if that topic was to be in issue.
136 Regrettably, Mr Hastwell's submissions on these three grounds simply reiterated the objections to being examined that he had expressed to the primary judge. They disclosed no reason why the primary judge's discretion miscarried and no appellable error on this Honour's part.
137 Proposed grounds 10, 13 and 14 would fail.