(2016) 259 CLR 1
Commonwealth of Australia v Griffiths [2007] NSWCA 370
(2007) 70 NSWLR 268
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
[2011] 2 AC 398
The Age Company Ltd v Liu [2013] NSWCA 26
Source
Original judgment source is linked above.
Catchwords
(2016) 259 CLR 1
Commonwealth of Australia v Griffiths [2007] NSWCA 370(2007) 70 NSWLR 268
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12[2011] 2 AC 398
The Age Company Ltd v Liu [2013] NSWCA 26
Judgment (4 paragraphs)
[1]
The applicant's core argument
The applicant argued that leave to appeal was not required, and referred to this Court's judgment in Young which held that leave to appeal was not required in that case. There, however, the appeal concerned a final determination of a separate question. Here, the primary judge was determining a summary judgment application pursuant to r 13.4 of the UCPR. It is well-established that decisions on such applications are treated as interlocutory and require leave to appeal under s 101(2)(e) of the Supreme Court Act 1970 (NSW): eg Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [10]-[13].
Generally speaking it is appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or a reasonably clear injustice going beyond something that is merely arguable: The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 at [13].
It was the respondent who sought that there be a separate hearing of the application for leave to appeal. Yet the primary judge himself indicated that the case gave rise to a question of public importance:
[89] This application gives rise to an important point. In my view, a medicolegal expert retained to provide a report, who is required to comply with the Expert Witness Code of Conduct on the basis that evidence might be used in court, continues to have immunity from suit.
The applicant articulated many arguments in his written and oral submissions in this Court, but his core contention seems to come down to this: the rationale for witness immunity is respect for the finality of court judgments; that in this matter there were no proceedings commenced on the basis of the respondent's report, let alone any judgment in which that report was considered; in those circumstances the preparation of the report was outside the scope of witness immunity. He submitted that unless proceedings have been commenced and decided, and those proceedings involve consideration of the witness's statement or report, then witness immunity cannot apply to such a statement or report. He sought to distinguish this Court's decisions in Griffiths and in Young on the basis that in those matters there had been litigation involving the witnesses, whereas in this matter proceedings were never commenced on the basis of the respondent's report.
That submission might be suggested to be ambitious. There is also room for argument as to whether Young is distinguishable on that basis, given that there was no judicial determination in that case. Even so, the applicant's core contention does raise an issue of principle and of public importance.
The respondent sought to answer these points by arguing, in effect, that the primary judge had carefully considered the issues and was correct in his conclusion. The point about careful consideration does not establish that the issues raised are not ones of principle and importance. And it is difficult to assess the point about the conclusion being correct given that neither party provided the Court with any of the materials that were before the primary judge.
The applicant's proposed ground 2 is the one which best captures his core contention. In headline form, that ground is that "there must be a functional connection for 'out-of-court' conduct". It is then said that the primary judge erred in law because work conducted out of court must affect the conduct of a case in court so as to bear upon the judge's determination of the case, and here the respondent's report was prepared prior to there being any proceedings on foot. This ground can be understood to raise the following, linked sub-issues:
1. what test for witness immunity should be applied with respect to work done by witnesses outside of, and prior to, proceedings in a court;
2. whether the immunity can only apply if doing so may undermine the finality of some court decision; and
3. whether the primary judge applied the correct legal test.
In our view these sub-issues raise matters that are reasonably arguable, and the former two are issues of principle and public importance.
In D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, when considering the issue of advocate's immunity, four members of the High Court said the following relating to witness immunity (citations omitted, emphasis added):
[39] From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. …
[40] The development of judicial immunity was more complex. … What is important to notice for present purposes is not the history of development of this immunity, but that both judicial immunity and the immunity of witnesses were, and are, ultimately, although not solely, founded in considerations of the finality of judgments.
In relation to what test applies in establishing witness immunity for work done outside court, the parties each referred to the decisions of this Court in Griffiths and Young. In the former case, Beazley JA, speaking for the Court, held that "there is no doubt that the immunity extends beyond giving evidence in court", stating that for it to do so "there must remain a connection with the evidence that is to be given in court (regardless of whether evidence is, in fact given)" (at [84]). As noted above, her Honour had earlier said that out of court conduct must be "sufficiently connected with the proceedings" (at [42], emphasis added). The label "sufficiently" is conclusory.
In Young, Bathurst CJ stated that "like advocate's immunity, the principle underlying the immunity is the principle of finality" (at [17]). After a review of English and Australasian authorities addressing how the immunity applied to out of court work, his Honour then explained his view of the appropriate test for such work performed by an expert witness:
[35] This review of the authorities reveals a somewhat divergent approach to the application of the immunity to out of court work done by an expert. However, once it is appreciated that the rationale for the immunity is the same as that for advocate's immunity, there is no reason for the test for the application of the immunity to be different in either case. Thus the immunity will apply where the work in question is work done in court or work done out of court which leads to a decision affecting the conduct of the case in court or putting it another way, is work intimately connected with the work in court: D'Orta at [86].
Thus his Honour linked the rationale and the test for witness immunity to the rationale and test for advocates' immunity. As to the test, his Honour expressed this in terms of intimately connected, which gives some content to the notion of being sufficiently connected. We note that even if the test is the same as for advocates that does not necessarily mean it will be applied in the same way.
As to the rationale, there is room for argument as to whether his Honour was correct to equate these for the two immunities. To begin with, the joint judgment in D'Orta said that both immunities "are, ultimately, although not solely, founded in considerations of the finality of judgments" (at [40], emphasis added). It is arguable that there are additional rationales for witness immunity beyond finality. Indeed, that very point was made by senior counsel for the respondent, who identified the following additional rationales: protecting witnesses who give evidence in good faith; encouraging people to assist the administration of justice; and promoting the confidence of witnesses to speak fearlessly and freely. Such points apply to witnesses generally. As regards expert witnesses in particular, much emphasis has been given in recent times to the paramount duty of expert witnesses to the Court. That duty is captured in this State in cl 2 of Sch 7 of the UCPR:
An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness.
Of course, advocates also owe overriding duties to the Court, including not to mislead the Court. However, subject to those duties, advocates are in a different position to experts - or any witness - in that they are expected and permitted to advocate, which is anathema to the task of any witness. We express no conclusion on whether we agree or disagree with the views expressed by Bathurst CJ in Young at [35]; we simply note that other views are reasonably arguable.
Ward JA, with whom Emmett AJA agreed, did not expressly equate the two immunities in Young. Her Honour referred to and applied the approach taken by Beazley JA in Griffiths, which Ward JA described as follows (at [247]): "The relevant test applied by her Honour was thus a test as to the connection between the conduct of which complaint was made and the hearing, having regard to the underlying rationale of the immunity namely the principle of finality". Ward JA subsequently spoke of the need for there to be a "sufficient connection" (at [276]). Significantly, her Honour rejected an argument made by the appellant in that case that the primary judge there had erred by applying a test of connection as opposed to a test "that focuses on the purpose of the work carried out by the expert" (quoting [248]). Her Honour said the following of the argument:
[251] In Griffiths, her Honour did not frame the test by reference to the purpose or intention, subjective or otherwise, of the person undertaking the work about which complaint is made. Rather, her Honour looked to see whether there was a connection between the work performed and evidence given or to be given in the subsequent hearing.
Subsequently, in applying the sufficient connection test to the facts of the case (which involved court proceedings which had been settled), Ward JA said this:
[277] If the matter is tested having regard to the rationale underlying witness immunity, for the complaint now made against the engineer respondents to be determined would require that the matters resolved in the settlement of the proceedings … now be explored in the context of the Common Law Division proceeding. In that sense, the basis of the settlement would fall to be re-opened and the rationale underlying the immunity would come into play.
Young was decided prior to the High Court's decision in Attwells. In that case the High Court held that advocates' immunity did not extend to advice given about whether to settle proceedings, even if given after the trial had begun and where the settlement led to consent court orders. Reasonable arguments can be made as to whether the more restrictive approach in relation to advocates' immunity taken by a majority of the High Court in that case throws some light on assessing the immunity of witnesses for work done out of court.
As to whether the primary judge applied the correct legal test in this matter, and leaving aside the issue of quite what that test is, as explained above at [9]-[12] his Honour's reasons were addressed to considering the arguments that the applicant had put as to purpose. His Honour did not express a conclusion in terms of whether the preparation of the impugned report was connected - sufficiently, intimately or otherwise - to the conduct of some court proceedings. There appears to be room for argument whether his Honour erred in that respect, although it might also be argued that that conclusion was implicit. It may be that a connection test can encompass consideration of the (objective) purpose for which evidence was obtained but, as Ward JA's judgment in Young indicates, the connection test is not itself a purpose test.
[2]
The other proposed grounds of appeal and the draft notice of appeal
The applicant's other proposed grounds of appeal are as follows (quoting the headline version of each ground):
Ground 1 - Failure to properly apply the principle of "finality of judgment"
Ground 3 - Irrelevant considerations
Ground 4 - For every wrong there should be a remedy - Novel Argument
Ground 5 - Expert witness immunity should be viewed differently to factual witness immunity
The applicant linked grounds 1 and 3 to ground 2. It may be that not all variants of these grounds are necessary or useful.
Ground 4 seeks to invoke, in a somewhat unclear way, the majority decision of the United Kingdom Supreme Court to abolish witness immunity for expert witnesses: Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398. The applicant did not seem to be submitting that the whole immunity should be abolished in Australia. Rather, his emphasis was on what the test for witness immunity was and how it should be applied. Ground 5 seeks to differentiate expert and lay witnesses. A real question arises as to whether or not taking the path suggested by these two grounds is open to this Court in light of earlier High Court authority. How much these grounds add to his core contention is also open to doubt. However, we consider it appropriate to allow the applicant some freedom as to how he formulates his notice of appeal, and so we will grant leave to appeal without restriction as to the grounds proposed.
The notice of appeal is drafted in an unconventional manner and would benefit from refinement. Further, the applicant conceded in oral argument that his draft notice of appeal does not correctly state the orders that would be sought on appeal. Contrary to the draft, there is no need for the applicant to seek an order that he have leave to file his amended statement of claim - that was permitted by order 1 made by the primary judge. What the applicant really seems to seek is that his appeal be allowed, that orders 2 and 3 made by the primary judge be set aside, that in lieu thereof the respondent's motion be dismissed, and he seeks his costs in both courts.
[3]
Conclusion
The grant of leave to appeal is discretionary. A possible reason against granting leave, even given the issues of principle identified above, would be if we considered the litigation was ultimately likely to be a waste of the time and resources of both the Court and the parties. A particular concern in that regard is that, as explained above, the applicant had brought proceedings in the Federal Court against his employer but those proceedings were permanently stayed, principally because of the applicant's refusal to attend a medical examination arranged by his former employer for the purpose of those proceedings. On appeal, the Full Court of the Federal Court said the following:
[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.
The last two sentences have equal force in this proceeding. The Supreme Court may make an order requiring a party to have a medical examination: UCPR, r 23.4. We asked the applicant if he proposed to take the same approach in this proceeding, were it to go back to the Supreme Court, as he had adopted in the Federal Court. We understood his position, in the end, to be that he would comply with an order made under r 23.4. We do not consider it appropriate to impose this as a condition of the grant of leave, nor to require an undertaking to that effect. However, if the appeal were to be upheld and the applicant were later to refuse to attend an examination with relevant medical practitioner/s of the respondent's choice pursuant to an order made under r 23.4 (assuming the making of an order was necessary), then the position taken by the applicant in this application may be significant in considering any stay application subsequently brought by the respondent, and could also be relevant to costs.
Given that this case raises issues of principle and public importance, and the applicant is self-represented, we raised with him the possibility of his seeking a referral for pro bono legal assistance pursuant to r 7.36 of the UCPR. The applicant indicated a willingness to take advantage of any such referral. However, he also informed the Court that he had managed to obtain representation by a firm of solicitors and a barrister in related proceedings in the Supreme Court that he had brought against Harmers law firm. The barrister in question was the same barrister who had appeared for him in this matter before the primary judge. The applicant also said that he had made attempts to find representation in this appeal and would continue to make such attempts. In this context we do not consider it appropriate to make a referral under r 7.36 at this stage. That being said, subject to considering whatever submissions the applicant files on the appeal, it may be an appropriate case for the Court to seek the assistance of an amicus curiae.
Costs of the application for leave to appeal will be costs in the appeal. It is appropriate that the matter be listed before the Registrar so that the applicant can inform the Court of the results of his attempts to obtain representation and so that the Court can make appropriate directions for the conduct of the appeal. The order of the Court will be as follows:
1. Leave to appeal is granted.
2. The matter is listed for directions before the Registrar of the Court of Appeal on Wednesday 27 March 2024.
[4]
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: 14 March 2024
THE COURT: The respondent in this application for leave to appeal is a psychiatrist. On the instructions of a law firm which was then acting for the applicant (Harmers Workplace Lawyers), the respondent examined the applicant in 2016 and produced a medicolegal report. The report was sought in the context of a potential discrimination claim being made against the applicant's former employer, a firm of solicitors. According to the applicant, Harmers decided to cease acting for the applicant as a result of the respondent's report. The applicant did subsequently file proceedings in the Federal Court against his former employer, but that claim was stayed on the basis that the applicant refused to subject himself to a medical examination by a psychiatrist chosen by the other side.
In proceedings in the Supreme Court the applicant has sought to sue the respondent for negligence, breach of fiduciary duty and contravention of a consumer guarantee with respect to the preparation of the medicolegal report. A range of possible answers to this claim can be imagined. The respondent sought to cut the claim off at the start by bringing an application for summary judgment pursuant to r 13.4 of the Uniform Civil Procedure Rules 2015 (NSW) (UCPR) on the basis of witness immunity. That application succeeded before the primary judge, Cavanagh J: Hastwell v Parmegiani [2023] NSWSC 1016.
The applicant now seeks leave to appeal from that summary dismissal. Leave should be granted. It is not necessary to provide reasons for a grant of leave to appeal. Nevertheless, taking account of the facts that the applicant is self-represented and has raised a range of issues and arguments, we consider it appropriate to provide reasons so as to throw light on which issues appear to be significant.
Context
This Court was not provided with any of the materials that had been before the primary judge. What follows is taken primarily from the primary judgment at [22]-[40]. The applicant was formerly a solicitor at Kott Gunning Lawyers in Perth. He stopped working for Kott Gunning in late 2014 when he was certified as unfit for work due to depression and anxiety. His employment was terminated in April 2015. He instructed Harmers to act for him, asserting that he had experienced bullying, discrimination and harassment during his employment at Kott Gunning.
Harmers lodged a complaint with the Australian Human Rights Commission (AHRC) on behalf of the applicant in May 2016, alleging discrimination on the grounds of sexual orientation and disability, amongst other things. In June of that year Harmers instructed the respondent, a consultant psychiatrist, to assess the applicant and provide a medicolegal report on "a number of matters, including the nature and extent of any psychological conditions which the plaintiff was suffering, the cause of such conditions, his fitness for work and specifically whether he had 'sufficient mental [capacity] to participate in proceedings at the AHRC and any potential ongoing litigation…'" (quoting the judgment at [31]). The letter of instruction said that "should this matter proceed to hearing, you may be called by Mr Hastwell as an expert witness and be required to give oral evidence in court" (ibid [32]). The letter of instruction included the Federal Court rules and practice note dealing with expert witnesses, and required the respondent to specify that his report complied with the practice note.
The respondent met and assessed the applicant, then provided a medicolegal report dated 29 June 2016. The report "is in standard form, addresses the questions asked and contains an acknowledgement in accordance with the Federal Court Expert Witness Code of Conduct" (ibid [34]). According to the applicant's pleading in this matter Dr Parmigiani concluded, amongst other things, that the applicant had a delusional disorder. The report was never served and, according to the applicant, was "the reason that Harmers ceased to act for him prior to any conciliation in the AHRC" (ibid [35]).
Subsequent to the abandonment of the AHRC process, the applicant initiated proceedings in the Federal Court in 2018 against his former employer, making allegations which were the same or similar to those made in the complaint to the AHRC sent by Harmers. Those proceedings have been permanently stayed due to the Applicant's refusal to attend a medical examination by a psychiatrist chosen by the other side: Hastwell v Kott Gunning (No 5) [2020] FCA 621; upheld on appeal in Hastwell v Kott Gunning [2021] FCAFC 70. In the course of the stay application the former employer referred to the existence of Dr Parmigiani's report, but the report was not in evidence and the applicant claimed that it was subject to legal professional privilege. It is not apparent if the applicant made that claim on the basis of it having been obtained for the dominant purpose of legal advice or the conduct of litigation or both.
The applicant then commenced the current proceedings in the Supreme Court. He claims against the respondent for negligence, breach of fiduciary duty and breach of the consumer guarantee in s 60 of the Australian Consumer Law (as the respondent is not a corporation, this may be a reference to the Western Australian iteration thereof, as enacted by s 19 of the Fair Trading Act 2010 (WA)).
The primary judge upheld the respondent's application for summary dismissal of the proceeding pursuant to r 13.4. His Honour noted the respondent's submission that "the immunity protects him from being sued as result of evidence that he gives in proceedings and extends to protect him from being sued in respect of out-of-court conduct, provided that the conduct is sufficiently connected with the proceedings" (at [49]). At [53] he quoted Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268 at [43], in which Beazley JA, speaking for this Court, said that "[t]here is … no doubt that the immunity extends to protect persons from being sued in respect of out of court conduct, provided that that conduct is sufficiently connected with the proceedings". The primary judge also referred to and quoted from one of the judgments in this Court's decision in Young v Hones [2014] NSWCA 337 (at [61]). And at [63]-[65] his Honour quoted extensively from Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1.
The respondent submitted that his Honour had applied a test of whether the respondent's report had a sufficient or intimate connection to litigation. Yet there is room for argument as to whether that is what his Honour did. The word "connected" and its variants do not appear in that part of the judgment which is under the heading "Consideration". Rather, his Honour was focused on addressing the arguments put by the applicant. Notably, the applicant argued that the report by the respondent was obtained "for the dominant purpose of providing advice and investigation as to whether, in fact, there could be a claim against the plaintiff's former employer" (see at [51(1)]). His Honour's reasons are substantially addressed to the purpose for which the report was obtained from the respondent (see at [51], [66]-[69], [70], [71], [73], [76]-[81]). Thus he said this at [70(2)]:
the application of the immunity is not dependent upon whether the plaintiff used the expert report in court proceedings. If that was the case, the application of the immunity would depend not upon the purpose for which the expert was asked to examine and provide a report but, rather, on what the client (being the plaintiff) thought about the report and decided to do with it.
His Honour considered that the AHRC claim was just a preliminary step in a potentially broader process, illustrated by the fact that Harmers had already given the respondent notice at the relevant time that the applicant intended to seek substantial damages if the claim could not be resolved (at [75]). He rejected the argument that the report had been obtained for the dominant purpose of investigation or advice, saying this:
[76] There is a clear distinction between an expert (of any discipline) giving advice to a person about prospects of success, evidence or issues in the proceeding and an expert being retained in accordance with the Expert Witness Code of Conduct. The proposition that the defendant was merely an expert retained by the plaintiff for the purposes of investigation, and for determining whether he might have a claim, is unsustainable.
On one view, his Honour treated the facts that the respondent had been asked to comply with the Expert Witness Code of Conduct, had indicated that he had done so, and that it was contemplated that the report might be used in evidence in court, as dispositive of both the purpose for which the report was obtained and of the question that was before him (see at [79], [82], [83] and [89]).