Holshandon Pty Limited v Eakin; Barlow-Smith v Eakin

Supreme Court of NSW|2014-08-18|Before: Adamson J

Solicitors: 2009/297481 and 2009/297482 Stacks/Forster Pty Limited (Plaintiffs) Lee & Lyons (First, Second, Third, Fourth, Sixth, Seventh, Eighth and Ninth Defendants) Curwood Lawyers (Fifth Defendant) File Number(s): 2009/297481 2009/297482 Publication restriction: Nil

Introduction 1On 28 July 2014 I heard a notice of motion filed by the defendants in these proceedings for orders that the plaintiffs be medically examined and also orders dispensing with the requirement in rule 23.5 of the Uniform Civil Procedure Rules NSW (2005) (UCPR) that a medical expert of the plaintiffs' choice be present for such examinations. I made the orders sought by the defendants on 30 July 2014: Holshandon Pty Limited v Eakin; Barlow-Smith v Eakin [2014] NSWSC 1028. As to costs, I ordered in respect of both proceedings, 2009/0029781 and 2009/00297482, that, subject to a written application for a different order being made to my associate within seven days, the plaintiffs ought to pay the defendants' costs of the motion. 2The plaintiffs sought a different order from the order I proposed and submitted at the hearing before me on 18 August 2014 that the costs of the motion be costs in the cause. The defendants contended that it was appropriate that the plaintiffs pay the costs of the motion since the defendants had succeeded on the motion and costs should follow the event.

Parties' submissions 3Mr Toomey, who appeared for the plaintiffs in both proceedings, submitted that because it was necessary that the defendants obtain orders to seek a dispensation or an indulgence from the provisions of r 23.5 of the UCPR, it was appropriate that they pay the costs of obtaining that indulgence. He referred me to the decision of Campbell J in Re Nardell Coal Corporation (in Liq) v Hunter Valley Coal Processing [2003] NSWSC 642 in which his Honour referred to the usual principle that the person seeking an indulgence pays the costs of the application and summarised the relevant authorities at [144] to [146]. 4Mr Toomey also submitted that it was not necessary for the plaintiffs to be examined at all and it was reasonable for them to object to being examined by Dr Champion, or indeed any psychiatrist, including Dr Skinner. 5Furthermore, he submitted that it was not until Thursday 24 July 2014, shortly before the hearing of the motion on Monday 28 July 2014, that the defendants made an alternative proposal that the plaintiffs be examined by Dr Skinner, who is also a forensic psychiatrist, rather than Dr Champion, who was the forensic psychiatrist by whom they had been examined in 2010 and to whose re-assessment they had particular objection. He also submitted that the defendants had not shown that they had made any particular attempt to obtain a psychiatrist who would be prepared to examine the plaintiffs in the presence of another medical expert. 6Mr Donaldson SC, who appeared for the defendants, submitted that, properly construed, r 23.5 of the UCPR is not a right in respect of which the defendants were seeking an indulgence. He submitted that, in circumstances where the alleged injuries occurred in 2006 and the plaintiffs had not been assessed by a psychiatrist since 2010, it was necessary both as a matter of natural justice and in the interests of justice that the plaintiffs be re-assessed. Since they refused to be assessed, except in the presence of their own medical practitioner, it was incumbent on the defendants to approach the Court to seek dispensation from r 23.5 of the UCPR. 7He also submitted that there was no obligation on the defendants to search for another psychiatrist who would not object to the presence of another medical expert. As the opinions of Drs Champion and Skinner revealed, the experts' objection to the presence of another medical expert was not based on the psychiatrists' idiosyncratic or personal preference, but on their considered expert opinions that having another medical practitioner present at such a psychiatric examination would not be conducive to the objective assessment of each plaintiff.

Reasons 8I consider that the Civil Procedure Act 2005 (NSW) has made at least some implicit modification to the usual principle that the person seeking the indulgence pay the costs. The just, quick and cheap resolution of the real issues in the proceedings requires parties to consider whether the UCPR provide an appropriate regime or whether the overriding purpose of the Act would be better achieved if a particular rule, in this case r 23.5 of the UCPR, were dispensed with. 9Furthermore, there is significant force in Mr Donaldson's submission that it is not appropriate to categorise the dispensations sought by the defendants to r 23.5 of the UCPR as tantamount to their seeking an "indulgence". The orders the defendants sought in the notice of motion were the only way in which they could progress the matter and have their psychiatric expert assess the plaintiffs for the purposes of the hearing, which is listed to commence in November this year. 10I take into account and have accepted, as my earlier judgment indicates, the evidence of the plaintiffs that they expect to suffer some personal anguish at any assessment by any psychiatrist for the purposes of the proceedings, particularly if such assessment is carried out in the absence of a medical expert of their choice. Nonetheless, for the reasons given in my principal judgment, I consider it to be in the interests of justice that such assessments occur. 11I consider that it was reasonable, in circumstances where the plaintiffs made personal criticisms against Dr Champion, that they resisted an order that they be examined by Dr Champion. However, when the defendants proposed on 24 July 2014 that they be examined by Dr Skinner, I consider that the plaintiffs' continued resistance to the notice of motion means that they ought bear the costs of the notice of motion after that time. 12In saying that I do not suggest that the plaintiffs behaved unreasonably in resisting the notice of motion, but rather that they ought bear the costs of the hearing of the motion because they were unsuccessful. The general principle that costs ought follow the event in my view applies, but with some leeway to allow the plaintiffs and their legal advisers some opportunity to consider whether to agree to the orders proposed by the defendants. 13In all the circumstances, I consider that the costs order that is appropriate and will do justice between the parties is that the costs of the motion be costs in the cause up to, but not including, the date of the hearing of the motion being 28 July 2014, but that the plaintiffs pay the defendants' costs of 28 July 2014.

Orders 14I make the following orders: Proceedings 09/297481

Costs of the motion be costs of the cause up to, but not including, the date of the hearing being 28 July 2014.
Second, third and fourth plaintiffs pay the defendants' costs of 28 July 2014, being the hearing of the notice of motion.
No order as to the costs of today
Stand the matter over to 9.15 am on 27 August 2014 for directions before me. Proceedings 09/297482
Costs of the motion be costs of the cause up to, but not including, the date of the hearing being 28 July 2014.
The plaintiff pay the defendants' costs of 28 July 2014, being the hearing of the notice of motion.
No order as to the costs of today
Stand the matter over to 9.15 am on 27 August 2014 for directions before me.

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: 19 August 2014

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