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[2026] NSWCA 163
procedural. Prayer 1, seeking permission to adduce additional evidence, was stood over to the appeal hearing. The question of leave to issue a subpoena or subpoenas to Dr Eagle was stood over to the Registrar...
This decision dealt with how the appeal would be prepared, not whether Ittyerah should receive a compliance certificate. The Court left the question of additional evidence to the judges hearing the appeal. It refused permission to subpoena two work colleagues because there was no evidence that affidavit evidence had been sought or would be unavailable, and because affidavit evidence would better assist the appeal process. The Court postponed the question of subpoenas to Dr Eagle until after she prepared a supplementary report. It also stated, without needing to decide the point, that an independent health assessor exercising professional judgment would not be acting at the Board’s direction for the relevant statutory non-compellability provision.
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2,182 words · generated 07/10/2026
The decision is an interlocutory ruling in George Ittyerah’s appeal against the Legal Profession Admission Board’s refusal to issue him a compliance certificate. It is not a decision about whether he is fit and proper to be admitted, whether the Board was correct to refuse the certificate, or whether the diagnosis relied on by the Board was accurate.
6 cited instruments linked from this judgment.
Ittyerah had studied law in India, been admitted to practise there, and later sought to requalify in New South Wales. He satisfied the academic and practical legal training prerequisites, but the Board refused his compliance-certificate application on 7 October 2025. The Board’s reasons relied in part on a report by consulting psychiatrist Dr Kerri Eagle. The Board was concerned about her assessment, the appellant’s approach to treatment, and a covert recording of the consultation: [16]-[23].
Ittyerah appealed under s 26 of the Legal Profession Uniform Law (NSW). His notice of motion sought two forms of relief: permission to adduce additional evidence at the appeal and leave to issue subpoenas to several people, including Dr Eagle, another psychiatrist and two colleagues at the Administrative Review Tribunal: [33]-[35], [42].
McHugh JA made a procedural decision on those requests:
The judgment records that the publication restriction was lifted on 21 August 2026.
The additional-evidence application raised questions about the nature of a s 26 appeal and the status of material before the Board. Section 28(1) provides that an appeal under the relevant Division is “by way of a rehearing” and that fresh, additional or substituted evidence may be given. The Court also identified possible questions about s 75A of the Supreme Court Act 1970 (NSW) and UCPR r 51.51: [31]-[36].
The Court considered that deciding whether the proposed evidence could be received would require resolving those legal questions and assessing the evidence’s role in the appeal. That was a matter for the three judges hearing the appeal. McHugh JA also considered it an inappropriate use of judicial resources to convene a separate preliminary hearing before those same judges: [37]. Accordingly, prayer 1 was stood over.
For the colleagues, the Court applied the threshold for leave to issue a subpoena under UCPR r 7.3. Drawing on the principles summarised in Hamzy v Commissioner of Corrective Services (No 1), the judge said that the party seeking a subpoena must establish good reason and a legitimate forensic purpose, having regard to the issues in the proceedings: [40]-[41].
The Board accepted that evidence of the appellant’s work functioning could be relevant, though it questioned the likely weight of that evidence. The disagreement concerned its form: the Board argued that it should be given by affidavit rather than orally under subpoena: [45]-[46]. The rules generally require additional evidence on appeal, and evidence in chief, to be given by affidavit, subject to the Court’s power to dispense with that requirement: [46].
There was no evidence that Ittyerah had asked the colleagues to provide affidavits, or that they had refused. The Court considered that the concern about disclosing Dr Eagle’s diagnosis at work did not establish why equivalent affidavit evidence could not be obtained without identifying that specific diagnosis. It also considered practical difficulties in serving subpoenas without explaining why the colleagues were being compelled to attend, the prospect that the Board might need to respond to their evidence, and the benefit to the appeal judges of receiving the evidence in affidavit form: [47]-[55]. Taken together, those considerations meant the material did not show sufficient reason to issue the subpoenas: [56]-[57].
The position concerning Dr Eagle changed when the Board undertook to obtain a supplementary report and make her available for cross-examination as its witness: [64]-[66]. The Court considered the proposed production subpoena premature because Dr Eagle might include the requested material with her supplementary report. Its utility could be assessed once that report had been served: [69]. As for attendance, the Board said it would not rely on her opinions without calling her. If she did not attend, the report would not be in evidence on the position then advanced by the Board, making the proposed subpoena’s forensic purpose less apparent: [70]. The Court therefore stood over both questions rather than finally deciding leave.
The judgment does not purport to change the law governing appeals, subpoenas, or health assessments. Its contribution is an application of existing procedural rules to an appeal under the Uniform Law, together with an express but unnecessary view on the meaning of “acting at the direction of” in s 467(2)(f).
Before this ruling, the statutory framework already provided that a s 26 appeal was by way of rehearing and could involve fresh or additional evidence: Uniform Law s 28(1), set out at [32]. The UCPR already provided for affidavit evidence in applications to receive additional evidence and generally for evidence in chief: [46]. The Court did not settle how those provisions interact with the specific appeal, or whether the appeal operates as a hearing de novo, requires a showing of error, or gives particular status to the material before the Board. Those questions were canvassed in the supplementary submissions by reference to Ku-ring-gai Council v Bunnings Properties Pty Ltd, Builders Licensing Board v Sperway Constructions, Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd, Allesch v Maunz, Federal Commissioner of Taxation v Sagar and Commissioner of Patents v Sherman, but McHugh JA said they did not need to be resolved on the motion: [62]-[63].
After the ruling, the immediate procedural position was clearer but the central evidentiary questions remained open. The panel hearing the appeal would decide whether additional evidence could be received. The Registrar would consider the proposed subpoenas to Dr Eagle after her supplementary report. The ruling did, however, refuse leave for subpoenas to the ART colleagues on the material then available.
The judgment’s discussion of s 467(2)(f) is not a necessary holding determining the motion. McHugh JA stated that, if required to decide the issue, he would have held that an independent health assessor appointed under UAR r 23 was not acting at the direction of the Board: [72]-[76]. The judgment therefore supplies a reasoned view about that statutory phrase, but it should be read with the judge’s express statement that the issue did not need to be determined.
At [37], McHugh JA said the questions about the applicable provisions and the admissibility of evidence “are matters for the three judges who hear the appeal.” In plain English, the judge hearing this procedural motion would not decide in advance what evidence the appeal panel should receive. The panel deciding the appeal would deal with those issues in the appeal’s context.
At [40]-[41], the judgment adopted the threshold that a subpoena requires “a good reason” and a “legitimate forensic purpose”, assessed against the issues in the proceedings. In practical terms, relevance alone does not necessarily establish that a subpoena should issue. The party seeking leave must explain why compulsory process is justified.
At [46], the Court noted that UCPR r 51.51(4) requires additional evidence on an appeal to be given by affidavit, and that r 31.2 generally requires evidence in chief to be given by affidavit. The rules are subject to the Court’s power to dispense with them in an appropriate case. The Court gave unwillingness to provide an affidavit or attend voluntarily as a possible example, not as a finding about the colleagues in this case: [46]-[47].
At [56], the judge concluded that there was not a sufficient reason on the material before the Court to permit subpoenas to the colleagues. The result turned substantially on the absence of evidence that affidavit evidence had been requested and refused, together with the procedural and practical considerations set out at [50]-[55].
At [74]-[75], McHugh JA reasoned that a health assessor’s conclusions must be based on independent professional judgment. The Board could not direct Dr Eagle about the assessment or dictate her opinion. The judge consequently stated that she was not acting at the Board’s direction within s 467(2)(f). This passage is significant, but it was not necessary to the orders because the Board no longer pressed its s 468(1) objection: [64], [72].
The procedural reasoning is most directly relevant where an appeal statute permits fresh or additional evidence, but the scope of that permission has not yet been determined. The judgment indicates that, where the admissibility issue is bound up with the nature of the appeal, it may be appropriate for the appeal panel to determine it at the hearing rather than for a single judge to decide it in advance: [36]-[38]. The Court did not establish that this course is required in every statutory appeal.
The subpoena reasoning concerns a self-represented party seeking leave under UCPR r 7.3 to compel lay witnesses on an appeal. The relevant features here included accepted relevance, no evidence that voluntary affidavit evidence had been sought or refused, a general requirement for affidavit evidence, and potential procedural fairness and case-management consequences: [45]-[56]. The decision does not say that a subpoena to a workplace colleague will always be refused. Its conclusion was expressly based on the material before the Court.
The Dr Eagle discussion may be relevant to the statutory distinction between a person who is a member of an authority’s staff or acting at its direction, and an independent professional assessor appointed to give an assessment under a statutory scheme. The Court’s reasoning focused on the assessor’s professional independence and the Board’s inability to dictate the opinion: [73]-[75]. As the issue was unnecessary to determine, later courts would need to consider the statutory text and context in any case before them.
The judgment supplied here contains no decisions made after it applying, following, distinguishing or otherwise treating its reasoning. It therefore does not support a claim about subsequent judicial treatment.
The authorities mentioned in this judgment were authorities available to McHugh JA when deciding the motion, not later treatment of Ittyerah. The Court used Hamzy to identify the principles relevant to leave for a subpoena: [40]-[41]. It referred to Comlin Holdings when considering whether a preliminary hearing would be an appropriate use of judicial resources: [37]. It identified several authorities in relation to unresolved questions about the nature of the s 26 appeal: [62]-[63]. The judge did not decide those broader questions.
The s 467(2)(f) discussion should also be distinguished from a final determination of that issue. The judge expressly said the issue need not be determined, then stated the view he would have taken if required to decide it: [72]-[76]. Any account of later treatment would require later decisions not included in the supplied judgment.
The substantive appeal remained undecided. The judgment does not determine whether the Board’s refusal was correct, whether Ittyerah was a fit and proper person, or what weight should be given to Dr Eagle’s original assessment or supplementary report.
The appeal panel was left to determine the character and scope of the s 26 appeal, including the relationship between “by way of a rehearing” in s 28(1), the statutory permission to give fresh or additional evidence, s 75A of the Supreme Court Act, and UCPR r 51.51: [32], [36]-[38]. The supplementary submissions raised whether the appeal was in substance a hearing de novo, whether error had to be shown, and what status the Board material would have. The judge expressly left those issues unresolved: [62]-[63].
The content and effect of Dr Eagle’s supplementary report were also outstanding. That report could affect whether documents sought by subpoena had already been produced and whether any subpoena remained useful: [65], [69]. The Registrar was to address the proposed subpoenas after service of the report, while the scope of any directions about material for the assessor was also left for that process: [67], [69]-[71].
Finally, the judgment noted UAR r 24(2), which makes a report prepared under that rule, or evidence about the report or its contents, confidential subject to stated exceptions. The parties had not addressed the rule’s significance to publication of the reasons: [78]-[80]. The supplied text records the later lifting of the publication restriction, but does not determine any broader question about the operation of r 24(2).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Ittyerah v Legal Profession Admission Board [2026] NSWCA 163
Hearing dates: 20 July 2026, supplementary written submissions 3 and 10 August 2026
Date of orders: 13 August 2026
Decision date: 13 August 2026
Before: McHugh JA
Decision: (1) Prayer 1 in the notice of motion filed on 24 June 2026 be stood over to the hearing of the appeal.
(2) The question arising under prayer 2 in the notice of motion whether leave should be granted pursuant to r 7.3 of the Uniform Civil Procedure Rules 2005 for a subpoena or subpoenas to issue to Dr Kerri Eagle be stood over to the Registrar of the Court of Appeal on a date to be fixed by the Registrar.
(3) Prayer 2 in the notice of motion be otherwise dismissed.
(4) The costs of the notice of motion to date be reserved.
(5) The Court’s reasons for judgment be published in the first instance only to the parties to these proceedings.
(6) Direct the appellant within 7 days of the date of these orders to notify the Associate to McHugh JA of any objection to the publication of the Court’s reasons for judgment, to the intent that the reasons will otherwise be published without restriction.
Catchwords: APPEALS — procedure — application to adduce further evidence on appeal — where application involves questions concerning nature of the appeal — not appropriate for a single judge of appeal to determine — not appropriate to determine as a preliminary issue — stood over to hearing of appeal
CIVIL PROCEDURE — subpoenas — leave to issue subpoenas to produce and attend — proposed subpoena to colleagues — requirement to produce evidence by affidavit — leave refused — proposed subpoenas to health assessor — whether compellable — where Respondent belatedly undertakes to produce supplementary report of health assessor — stood over awaiting supplementary report
WORDS AND PHRASES — “acting at the direction of” — Legal Profession Uniform Law (NSW), s 467(2)(f)
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 14, 56
Legal Profession Uniform Admission Rules 2015 (NSW) rr 23, 24
Legal Profession Uniform Law (NSW) ss 16, 17, 19, 26, 28, 467, 468
Legal Profession Uniform Law Application Act 2014 (NSW) ss 11, 19, 89(4)
Supreme Court Act 1970 (NSW) ss 48, 51, 75A
Uniform Civil Procedure Rules 2005 (NSW) rr 7.3, 31.2, 51.51
Cases Cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62
Commissioner of Patents v Sherman (2008) 172 FCR 394; [2008] FCAFC 182
Federal Commissioner of Taxation v Sagar (1946) 71 CLR 421; [1946] HCA 6
Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114
Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183
Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28
Category: Procedural rulings
Parties: George Ittyerah (Appellant)
Legal Profession Admission Board (Respondent)
Representation: Counsel:
Appellant (in person)
J Curtin (Respondent)
Solicitors:
Crown Solicitor for NSW (Respondent)
File Number(s): 2026/00174255
Publication restriction: N/A
The appellant, who is self-represented, wishes to be admitted as a lawyer. For the purposes of the Legal Profession Uniform Law (NSW), the respondent (the Board) is a “designated local regulatory authority” pursuant to s 11(1) of the Legal Profession Uniform Law Application Act 2014 (NSW). The appellant applied to the Board pursuant to s 19(1) of the Uniform Law for a “compliance certificate”, the obtaining of which is a step in the process of admission as a lawyer: Uniform Law s 16(1)(a). On 7 October 2025 the Board rejected the appellant’s application for a compliance certificate (the Decision), for which it gave detailed reasons (Reasons). Pursuant to s 26 of the Uniform Law, he has appealed against the Decision, commencing proceedings in the Supreme Court of New South Wales which were later removed into the Court of Appeal.
The circumstances in which the Decision was made will be addressed more fully below. The important point for present purposes is that by s 17(1)(c) of the Uniform Law, one of the three prerequisites for the issue of a compliance certificate in respect of a person is that he or she “is a fit and proper person to be admitted to the Australian legal profession.” The appellant had satisfied the other two prerequisites. In rejecting the appellant’s application for a compliance certificate, the Board relied on a report given by Dr Kerri Eagle, a consulting psychiatrist. The appellant does not wish Dr Eagle’s diagnosis to be identified in these reasons, and there is no necessity to do so. The Board’s Reasons at [30] emphasised Dr Eagle’s professional opinion that the appellant was suffering from an identified class of psychological disorders, and quoted Dr Eagle’s report: “the specific nature of [the disorder] is at this stage unclear but appears likely to be [a specific disorder]”. The Board referred to Dr Eagle’s conclusions about the difficulties the appellant would have in conducting legal practice because of the disorder (Reasons at [31]), and also expressed concern about how his “present difficulties are being overcome or managed” in circumstances where he disputed the correctness of Dr Eagle’s diagnosis (at [36]).
Although the appellant relies on many grounds of appeal, his main forensic target is plainly Dr Eagle’s diagnosis. That is to say, on his s 26 appeal the appellant wishes to challenge one of the central factual matters on which the Board relied in making the Decision. To that end, he filed a notice of motion on 24 June 2026 which came before me in the referrals list. The relief sought is broadly (1) permission to adduce certain categories of additional evidence on the appeal, and (2) leave to issue various subpoenas.
The argument on the notice of motion raised questions about the nature of a s 26 appeal and the status on the appeal of the material that was before the Board. I sought additional written submissions from the parties on those and related issues, as explained below. The position adopted by the Board in its supplementary submissions (that it would obtain a supplementary report from Dr Eagle and make her available for cross-examination) significantly narrowed the issues.
The appellant is 47 years old. He studied law in India and was admitted to practice in one of its states in 2003. He was employed as a solicitor by a firm in India from 2003 to 2004, and then joined a large multinational corporation where he was employed (again in India) as an in-house lawyer from 2005 to 2008. That employer sponsored the appellant to move to Melbourne in 2008. He worked for the same employer until 2014 when there was a workplace incident.
From September 2015 to July 2019, the appellant worked as a Service Team Member at Coles Supermarkets. On 22 July 2019, Coles terminated the appellant’s employment.
The appellant then commenced study to requalify as a lawyer in New South Wales. He has satisfied the specified academic qualifications prerequisite and the specified practical legal training prerequisite for admission to practice as a lawyer in this State.
On 14 September 2024, the appellant sent an email to the Board stating that he intended to apply for admission. In his application, the appellant disclosed the employment incidents in Melbourne and at Coles. The appellant disputed the basis on which Coles terminated his employment.
The appellant also disclosed to the Board various mental health diagnoses in the period 2015-2017 made by a psychiatrist, by a general practitioner and by a psychologist. None of those diagnoses was the same as that made by Dr Eagle on which the Board relied in making the Decision.
In 2022, the appellant obtained a referral for a mental health assessment. The appellant informed the Board that he had asked for the referral “to ensure that [he] could make disclosures to the Board”. In October 2022, the appellant saw Dr Rhoderic Chung, a psychiatrist. Dr Chung diagnosed the appellant as suffering from the same class of psychological disorder as Dr Eagle later did, although Dr Chung does not appear to have identified the same specific disorder within that class as Dr Eagle later did. Before the Board, the appellant disputed Dr Chung’s diagnosis.
The appellant then submitted to the Board a report by Associate Professor Neil Jayasingham, a psychiatrist. The report referred to “a historical vulnerability to mental health symptomatology” and acknowledged that “certain triggers may be associated with mental health decompensation”. But Prof Jayasingham opined that outside of settings containing those triggers, “there appears to be no restriction in [the appellant’s] ability to satisfactorily carry out the inherent requirements of practice as an Australian Legal Practitioner”.
By letter dated 14 April 2025, the Executive Officer of the Board wrote to the appellant informing him that the Board had determined to require him to undergo a health assessment under r 23 of the Legal Profession Uniform Admission Rules 2015 (NSW), which provides.
23 Health assessments
(1) If there is material before the Board to indicate, on reasonable grounds, that an applicant for a compliance certificate may be currently unable, for reasons of health, satisfactorily to carry out the inherent requirements of practice as an Australian legal practitioner, the Board may require the applicant to provide a health report to the Board.
(2) A health report must be—
(a) prepared by a registered medical practitioner,
(b) about the applicant’s ability satisfactorily to carry out the inherent requirements of practice as an Australian legal practitioner, and
(c) provided by a date nominated by the Board.
(3) If either—
(a) a health report is not provided by the date nominated by the Board, or
(b) the Board reasonably considers that any health report provided by the applicant is insufficient for the Board to form a view whether or not the applicant is currently unable, for reasons of health, satisfactorily to carry out the inherent requirements of practice as an Australian legal practitioner,
the Board may—
(c) require the applicant to undergo a health assessment, and
(d) appoint one or more appropriately-qualified persons (one of whom must be a registered medical practitioner) as a health assessor to conduct all or part of that health assessment.
(4) The Board—
(a) must inform the applicant in writing if a health assessment is required, setting out—
(i) the name and qualifications of the health assessor, and
(ii) the date (at least 28 days after the date of the written notice), time and place for the assessment, each of which must be reasonable having regard to the circumstances of the applicant, as known to the Board, and
(b) may disclose to the health assessor any information in the Board’s possession that the Board considers relevant to the health assessment, including any documents included in the application for a compliance certificate.
The Board later appointed Dr Eagle, apparently pursuant to r 23(3)(d).
The Board instructed Dr Eagle by a letter of instructions dated 1 July 2025. Following correspondence between the appellant and the Board in which the appellant requested that the session with Dr Eagle be recorded and the Board declined that request, Dr Eagle saw the appellant on 21 August 2025 for about two hours.
Dr Eagle provided a report dated 12 September 2025. The Board quoted from the report in some detail (Reasons at [19]-[22]), and made the report Appendix 1 to the Board’s Reasons. It is convenient to deal with the content of Dr Eagle’s report and the use the Board made of the Report at the same time.
Dr Eagle’s principal diagnostic conclusions are noted above. The Board appears to have accepted her diagnosis: see Reasons at [29]-[30]. However, the Board also accepted at [30] that “an illness of this nature does not axiomatically compel the Board to refuse to grant a compliance certificate”; that depended, instead, on “an evaluative judgment in all of the circumstances”.
Dr Eagle considered that “the most significant risk” the appellant presented, if he became a legal practitioner in circumstances where his disorder was untreated, was “that he may engage in conduct that could be prejudicial to public confidence in the legal profession and in the administration of justice”: Reasons at [21]. The Board was plainly troubled by that prospect: see also at [31] and [42].
As noted above, the Board expressed concern about whether, and if so how, the appellant’s “present difficulties are being overcome or managed”: Reasons at [36]. In this respect, Dr Eagle had noted the appellant’s unwillingness or reluctance to engage with a treating psychiatrist. But she opined that if the appellant undertook regular consultation with a psychiatrist for diagnostic clarification and treatment recommendations, “he may recover to the extent that he could practice safely, appropriately and professionally as an Australian legal practitioner”: at [22]. Dr Eagle recommended consulting a psychiatrist on a regular basis for an extended period of time (“for instance 12 months”), as well as a period of at least six months of regular psychological therapy. On the question of treatment, the Board noted at [36] that the appellant accepted Dr Jayasingham’s diagnosis and that he was willing to see Dr Jayasingham, but that the appellant reserved the right to refuse pharmacological treatment. The Board said that that fell short of accepting Dr Eagle’s recommendation and did not constitute “an unconditional willingness on [the appellant’s] part to undergo such treatment as is necessary to restore himself to health”.
On 17 September 2025, the Board provided a copy of Dr Eagle’s report to the appellant and invited him to respond if he wished to do so. The appellant later prepared a document titled “Statement of Objections — Report of Dr Kerri Eagle”. A copy of this document is Appendix 2 to the Board’s Reasons, but it was not reproduced in the material on the notice of motion. The Reasons at [33]-[35] described the document as seeking to impugn Dr Eagle’s report in two principal ways.
“Regrettably, the Board considers itself compelled to reject [the appellant’s] application for a compliance certificate, both for the sake of his own health as well as for the protection of the public. The Board urges [the appellant] to follow Dr Eagle’s advice and undergo a course of treatment to restore his mental health.”
The appellant commenced his s 26 appeal proceedings in the Common Law Division. However, by orders made in chambers on 15 April 2026, the Registrar removed the proceedings into the Court of Appeal.
This occurred in circumstances where:
Section 19 of the Application Act constitutes the Board as a corporation. Clause 1 of Sch 3 to that Act provides that the Board is to consist of 11 members who are to include the Chief Justice of New South Wales and three judges of the Supreme Court nominated by the Chief Justice.
It is not disputed that the members of the Board present at the meeting at which the Decision was made included Payne and Kirk JJA and Brereton J, each of whom is a Judge of the Supreme Court of New South Wales.
In light of their Honours’ participation in the Decision, for the purposes of the present appeal the Board was a “specified tribunal” as defined in s 48(1)(a)(vii) of the Supreme Court Act 1970 (NSW):
“a tribunal or other body (not including the State Parole authority) that was constituted by one or more judges or members when exercising the functions, or purporting to exercise the functions, to which the proceedings in the Court relate”.
(The words “judge or member” are defined in s 48(b)(i) to include a “Judge”, which by s 19(1) of the Supreme Court Act is defined to be a Judge of the Supreme Court of New South Wales.)
Section 48(2)(f) provides that proceedings “on an appeal from a specified tribunal” are “assigned to the Court of Appeal”.
It appears that these circumstances were the basis on which, on 15 April 2026, the proceedings were removed into the Court of Appeal. Section 51(1)(b) of the Supreme Court Act confers such a power: see, e.g., Makowska v St George Community Housing Ltd [2022] NSWCA 5 at [6].
The removal gave effect to the assignment of business in s 48(2)(f). However, in light of the issues raised on the notice of motion, it appeared that at least the appellant was contemplating that the appeal would encompass a factual contest, involving the giving of oral evidence by three or more witnesses including cross-examination of Dr Eagle. I asked the parties whether the proceedings, or any question in the proceedings, should be remitted to the Common Law Division pursuant to s 51(4) of the Supreme Court Act.
The Board opposed that course in its supplementary submissions, referring to the judicial composition of the Board; the potential precedential issues raised with respect to the nature of s 26(1) appeals; and the Court’s practice that its powers with respect to discipline of the legal profession are to be exercised by the Court of Appeal. The Board further submitted that the issues in dispute are not predominantly of fact but of how the facts should be interpreted; that the witnesses were likely to be limited to the appellant and Dr Eagle; and that the total hearing length was unlikely to exceed one day. Mr Ittyerah also opposed remitter in his supplementary submissions. He submitted that it was arguable that s 48(2)(f) applied, but that even if it did not, given the constitution of the Board it is appropriate that the matter be determined by the Court of Appeal. He estimated the hearing length at “closer to two days”. It is, however, difficult to estimate the hearing length at this stage, given that the scope of any factual contest may depend on the content of Dr Eagle’s proposed supplementary report.
In the circumstances, the matter should proceed in the Court of Appeal.
26 Right of appeal about compliance certificates
(1) An applicant for a compliance certificate may appeal to the Supreme Court against the refusal of the designated local regulatory authority to issue a compliance certificate.
…
(4) The Supreme Court may make any order it considers appropriate on an appeal under this section.
(5) If the Supreme Court decides that an appeal under subsection (1) should be granted, the order may include a direction that the order has the same effect as a compliance certificate provided to the Court by the designated local regulatory authority.
28 Provisions relating to appeals
(1) An appeal under this Division is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the designated local regulatory authority may be given on the appeal.
(2) On an appeal under this Division, the Supreme Court may make an order as to costs as it thinks fit, other than an order against the designated local regulatory authority in favour of an applicant where the appeal was not successful.
The appellant wishes to take advantage of the facility provided by s 28 for giving evidence that is “fresh … or … in addition to or in substitution for the evidence” that was before the respondent.
The appellant filed his notice of motion on 24 June 2026, with a supporting affidavit made on 23 June 2026: see Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 51.51(1)-(3). He seeks orders as follows:
- The Court, in the exercise of its implied and statutory powers, permits the Appellant to adduce the categories of additional evidence identified in the Appellant’s affidavit dated 23 June 2026.
- Pursuant to rule 7.3 of the Uniform Civil Procedure Rules 2005, leave is granted to issue the subpoenas identified in the Appellant’s affidavit dated 23 June 2026.
As to prayer 1 in the notice of motion, the appellant’s affidavit dated 23 June 2026 identified a number of categories of evidence which the appellant wishes to adduce at the hearing of the appeal. These were, in summary:
Evidence of the appellant himself in affidavit form, said to go to the question whether he is a fit and proper person to be admitted to the Australian legal profession.
Extracts of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM5).
Evidence arising out of subpoenas to give evidence and/or to produce documents to be issued to Dr Eagle, Dr Chung, and two colleagues of the appellant at the ART.
The question what evidence the appellant may adduce at the hearing of the appeal arguably involves the interpretation of ss 26 and 28 of the Uniform Law; the interpretation of s 75A(7) of the Supreme Court Act, which permits the Court to receive “further evidence” (the Board having disclaimed any reliance on s 75A(8), which requires “special grounds” before further evidence may be received); and the operation of UCPR r 51.51, which applies to applications to receive “additional evidence” and requires that that evidence be given by affidavit.
Those questions of interpretation, and the ultimate question what evidence is to be admitted, are matters for the three judges who hear the appeal. This does not appear to be a case in which it would be an appropriate use of judicial resources to list that question for determination as a preliminary issue by three judges of this Court in anticipation of the hearing of the appeal itself; cf Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (2019) 99 NSWLR 447; [2019] NSWCA 73 at [5].
I will accordingly order that prayer 1 in the notice of motion be stood over to the hearing of the appeal.
As to prayer 2, the question whether any subpoenas should issue is distinct from, and arises at an earlier stage than, the question arising under prayer 1 (which goes to what, if any, additional evidence should be admitted on the appeal).
Since the appellant is self-represented, he requires the leave of the Court to have a subpoena issued: UCPR r 7.3. In Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183 at [5]–[6], Bellew J summarised the principles governing a grant of leave under UCPR r 7.3(1)(a) (citations omitted):
[5] Put simply, leave should not be given unless there is a good reason to do so. Some proper purpose for the issue of the subpoena must be established, bearing in mind that subpoenas are important steps in the litigious process. In considering a grant of leave, I must have regard to the various grounds on which a subpoena may be set aside. Those grounds include that a subpoena is oppressive, irrelevant, an abuse of process of the Court, or amounts to a fishing expedition.
[6] An overriding consideration in determining whether leave should be granted is that the party who seeks leave bears the onus of demonstrating that the subpoena has a legitimate forensic purpose. Whether such a purpose is demonstrated is a determination which must be made having regard to the issues in the proceedings.
While the bases on which a subpoena may be set aside are plainly relevant to the exercise of the r 7.3 discretion, whether or not any of those bases is applicable in a particular case may not be apparent until the recipient of the subpoena makes application to set it aside. The requirement that there be a good reason for the subpoena to issue permits a broader range of considerations to be taken into account at this threshold stage.
The persons to whom the appellant wishes to have subpoenas issued were refined after the appellant’s affidavit of 23 June 2026 as follows:
Dr Chung: subpoena to produce documents and subpoena to give evidence.
Two named colleagues of the appellant at the ART: subpoenas to give evidence.
Dr Eagle: subpoena to give evidence and subpoena to produce documents.
At the hearing of the notice of motion before me counsel for the respondent clarified that the Board’s decision was not based on any opinion of Dr Chung; that the reference to Dr Chung in the Board’s reasons was to explain why the Board had required the appellant to undergo a r 23(3) assessment; and that the respondent was not relying on Dr Chung’s opinions on the appeal. On that basis the appellant no longer presses his application for leave to have a subpoena issued to Dr Chung.
That part of the notice of motion will be dismissed.
As to the appellants’ colleagues at the ART, the appellant argues that the particular disorder which Dr Eagle diagnosed “is not a symptomless mental health disorder”. He wishes to lead evidence from his colleagues of his functioning in a work context, in order to show that his behaviour is inconsistent with the diagnosis. The Board accepts that such evidence would be relevant (whilst expressing doubt about its weight). The Board’s objection is as to the form of the evidence. The Board submits that it should be given by way of affidavit and served in advance of the hearing, rather than orally on subpoena.
The Board’s position is supported by UCPR r 51.51(4), which provides that where there is an application to receive “additional evidence” in the Court of Appeal, the additional evidence “must be given by affidavit”. It would also appear to be supported by the more general rule in UCPR r 31.2 (operating through r 51.1(3)), which relevantly provides that “evidence in chief of any witness at any hearing must be given by affidavit unless the Court orders otherwise”. Those rules are, of course, subject to the Court’s power to dispense with any requirement of the rules as appropriate in the circumstances of the particular case: see Civil Procedure Act 2005 (NSW) s 14. An example of such a case might be where there was evidence that the witness from whom an appellant wished to lead the additional evidence was unwilling to provide an affidavit or to attend to give evidence absent compulsion. Such a case might also provide a good reason for granting leave pursuant to r 7.3.
But that is not this case. There is no suggestion that the appellant has even approached his colleagues to provide an affidavit, still less any evidence that they have refused. Instead, the appellant argues:
“It is not feasible to obtain affidavit evidence about these matters since I cannot disclose the fact that Dr Eagle has diagnosed me with [the specific disorder] at the workplace. Disclosing Dr Eagle’s diagnosis at the workplace may lead to reputational harm and put my employment relationship at risk.”
(Affidavit made 23.6.2026 at [30])
The appellant also submitted that the diagnosis “influences his statutory and contractual duties of disclosure in insurance and employment law, and may put his employment … as a public service employee at risk”: written submissions filed 13.7.2026 at [1]. He submits that such a diagnosis “will trigger health and safety legislation and will be relevant to capacity to perform the inherent requirements of most jobs”: at footnote 2.
The Board submits that this is not a proper basis on which the Court could act. Indeed, on the hypothesis that the diagnosis has engaged duties of disclosure of the kind the appellant described, it would be a surprising exercise of the Court’s discretion to do so for the purpose of facilitating the appellant’s breach of those duties. On the other hand, the Board submits that “a termination based solely on a mental health diagnosis would appear to contravene both the Anti-Discrimination Act 1977 (NSW) and the Disability Discrimination Act 1992 (Cth)”: written submissions dated 17 July 2026, fn 11. On that view, the appellant’s concerns may be to some extent overstated. It is unnecessary to resolve those issues. I will assume in the appellant’s favour that it would be a legitimate use of the Court’s power to issue a subpoena for the reasons the appellant advances. Even so, I would refuse leave to issue subpoenas to the appellant’s ART colleagues.
There are obvious practical difficulties with the appellant’s argument, which has an air of unreality to it.
First, it is hard to envisage a scenario in which, when the appellant served his colleagues with the proposed subpoenas, they would not ask him why they were being compelled to give evidence in proceedings in the New South Wales Court of Appeal. The appellant indicated that he would simply not answer in a way that disclosed Dr Eagle’s diagnosis. The likelihood that such a strategy would itself give rise to reputational and relationship issues in the workplace seems strong, raising a real doubt as to the utility of the appellant’s proposal.
Secondly, on the assumption that serving the subpoena would not lead to disclosure of Dr Eagle’s diagnosis, it is not obvious why the appellant could not similarly obtain affidavit evidence as to his behaviour at work (the same evidence he wishes to adduce in oral evidence in chief) without disclosing the specific diagnosis made by Dr Eagle.
Thirdly, the Board submitted that in cross-examination it is likely that Dr Eagle’s opinions would be disclosed to the witnesses in any event. The appellant’s answers to this point are (1) that any such disclosure would not occur until the hearing and that there is an advantage to him in delaying that outcome if possible, and (2) that he may be able to obtain suppression orders in respect of the witnesses’ evidence and the diagnosis at the hearing. The first matter is not one to which I give great weight. The second matter is speculative.
The position as to Dr Eagle is more complex. When the notice of motion came on for hearing, the assumptions on which the appellant (and, indeed, the Board) appeared to be proceeding were that the Board proposed to tender Dr Eagle’s report at the hearing of the appeal as part of the material on which the Board had relied in making its Decision; that Dr Eagle would not have to be made available for cross-examination; but that the report could nevertheless be used to prove the opinions stated in it.
In those circumstances, the appellant’s immediate forensic objective in seeking leave to issue the subpoenas to Dr Eagle was to bring her before the Court in order to cross-examine her (presumably pursuant to s 38 of the Evidence Act 1995 (NSW)), including by reference to her notes. The appellant’s ultimate purpose is to establish that Dr Eagle’s diagnosis should not be accepted in this Court.
The Board argued that Dr Eagle was not compellable by reason of ss 467(2)(f) and 468(1) of the Uniform Law, such that there was no utility in issuing the subpoena. Two provisions are important.
Section 468(1) provides: “A relevant person referred to in section 467 is not compellable in any legal proceedings … to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Law.”
Section 467(2)(f) provides that a “relevant person means … a local regulatory authority; or … a person who is a member of the staff of, or acting at the direction of, any of the entities referred to in paragraphs (a) to (e).”
The Board argued that by reason of Dr Eagle’s appointment pursuant to r 23(3) of the Uniform Admission Rules, and her instruction by the Board, she was acting “at the direction of” the Board in the course of the administration of the Uniform Law. It relied upon a letter dated 16 July 2026 in which Dr Eagle indicated an intention to rely upon s 468(1).
Even apart from the operation of s 468(1), given the basis on which the parties were proceeding, the question whether leave should be granted to issue subpoenas to Dr Eagle raised a number of issues about the nature of a s 26 appeal. That led to the supplementary written submissions referred to above. These addressed questions including:
Whether a s 26 appeal, being an appeal from an administrative decision-maker described as “by way of a rehearing” but in which fresh evidence or evidence in addition to or in substitution for the evidence before the Board may be given, is in substance a hearing de novo (see Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28 at [144]-[149] (Preston CJ of LEC, Beazley P agreeing); Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62 at 619-22 (Mason J, Barwick CJ and Stephen J agreeing)).
In particular, the Board has stated that it now proposes to obtain a supplementary report from Dr Eagle: written submissions filed 3.8.20 26 at [3]-[4]. The Board stated that it does not contend that Dr Eagle’s role in preparing her previous report would confer upon her rights arising by reason of Uniform Law s 468(1) with respect to cross-examination on any new report. Nor does the Board contend that s 468 would operate to permit Dr Eagle to resist cross-examination of the original report, in circumstances where its contents will inevitably inform any supplementary expert report prepared. The Board has confirmed that Dr Eagle will be made available for cross-examination as the Board’s witness. In the circumstances, the Board says that the subpoena is unnecessary but the Board “no longer contends that the subpoena should be set aside on the grounds of utility” (i.e., it no longer presses its s 468(1) point). (It might be noted that the Board’s submissions appear to assume that there would be only one subpoena to give evidence and to produce documents, whereas the appellant’s submissions appeared to separate those two purposes into two different subpoenas.) In correspondence with the appellant attached to the Board’s submissions, the Board also stated, after obtaining confirmation from Dr Eagle, that she “will in these circumstances waive her rights under s 468” of the Uniform Law. That waiver would presumably extend to a subpoena to produce documents.
The Board proposes that there be further directions for the parties to file any additional material that they seek Dr Eagle to review for the purposes of preparing a supplementary report, and for the filing of the supplementary report itself. The Board submits that the issue of the subpoena should be stood over until after that date.
The appellant’s position is that although he reserves the right to challenge the admissibility of Dr Eagle’s original report and the supplementary report, he will not object to the Board’s filing a supplementary report in a timely manner. He submits that that should occur within a matter of weeks, given that the Board commenced processing the appellant’s application for a compliance certificate in October 2024. He identifies prejudice to him in further delay, asserting that he has not applied for insurance in the past year due to Dr Eagle’s opinion (see submissions, 10.8.2026 at [30]), and that he does not expect to be able to practice as a lawyer independently until he is aged about 50 (at [24]).
The appellant also opposes any orders for the parties to file material for Dr Eagle’s consideration in the supplementary report, arguing that the appeal should not become an ongoing health assessment conducted by Dr Eagle. Although there is obvious practical sense in that proposition, one difficulty is that the appellant’s own position is that the appeal is a hearing de novo at which all issues must be determined afresh, based on the circumstances existing at the date of hearing: see submissions, 10.8.2026 at [5]. Since this issue was not fully developed in argument, nor were any specific orders sought, the scope of any further directions will be a matter for the Registrar.
Notwithstanding that the Board has confirmed that Dr Eagle will be made available for cross-examination as the Board’s witness, the appellant presses his application for leave to have subpoenas issue to Dr Eagle.
As to the subpoena to produce, he submits that “there cannot be any further objection to that subpoena”. That submission should not be accepted; it is at least premature. In her supplementary report, Dr Eagle may, for example, identify and produce as appendices all the material sought in the schedule to the subpoena. Whether there is likely to be any utility in such a subpoena will have to await the service of the supplementary report. That part of the notice of motion will be stood over to the Registrar.
As to the subpoena to attend, the appellant submits that compelling Dr Eagle to attend for cross-examination will grant the appellant “a superior outcome as compared to relying on the consequences of Dr Eagle’s non-attendance. It is only fair that a forensic psychiatrist be compelled to defend an expert opinion in open court.” That submission appears to misunderstand the Board’s position with respect to Dr Eagle. The Board’s supplementary submissions make clear that the Board does not propose to rely on Dr Eagle’s opinions without calling her as a witness: see at [5], referring to [2(c)]. That being so, in the event of Dr Eagle’s non-attendance, her opinions would not be in evidence. In that situation it is difficult to see what would be the legitimate forensic purpose for issuing a subpoena to attend to give evidence to Dr Eagle, an expert retained by the opposing party whose report was not in evidence. It follows that unless there were some change in circumstances, I would be inclined to refuse leave to issue a subpoena to Dr Eagle to give evidence.
However, as noted above, the Board proposes that the issue of “the subpoena” be stood over until after the filing of the supplementary report. In those circumstances, and given that the question whether leave should be granted to issue a subpoena to produce documents to Dr Eagle is to be stood over to the Registrar, that is the course I will also adopt with respect to the proposed subpoena to attend to give evidence.
It follows that it is not necessary to determine the s 468(1) issue. However, given that the issue was fully argued, I note the following, which may be relevant to the parties’ approach to what should occur following service of Dr Eagle’s supplementary report.
The correspondence between the Board and the appellant referred to Dr Eagle’s “waiv[ing] her rights under s 468” of the Uniform Law. If it had been necessary for me to determine whether s 468(1) conferred any such rights on Dr Eagle in the circumstances of this case, I would have held that it did not. The only category of “relevant person” which might arguably catch Dr Eagle is that in s 467(2)(f): “a person who is a member of the staff of, or acting at the direction of” the Board. Members of staff will generally be employees, who may be reasonably directed as to the tasks they perform and the manner in which they perform them. The words “acting at the direction of” should be construed with that in mind.
The appellant asked that these reasons for judgment be published in the first instance only to the parties, in order that he might have the opportunity to consider his position as to any restriction on publication. I propose to give him 7 days in which to do so.
In this respect, it should be noted that r 24(2) of the Uniform Admission Rules provides as follows:
(2) A report prepared under this rule, or evidence about a report or its contents, is confidential and may not be disclosed to any person except where permitted by law or with the consent of the applicant.
The matter is presently listed for directions before the Registrar of the Court of Appeal on 17 August 2026. That listing should not be disturbed. The parties should be in a position to address the Registrar as to directions for the preparation and service of a supplementary report of Dr Eagle.
The Court orders that:
Prayer 1 in the notice of motion filed on 24 June 2026 be stood over to the hearing of the appeal.
The question arising under prayer 2 in the notice of motion whether leave should be granted pursuant to r 7.3 of the Uniform Civil Procedure Rules 2005 for a subpoena or subpoenas to issue to Dr Kerri Eagle be stood over to the Registrar of the Court of Appeal on a date to be fixed by the Registrar.
Prayer 2 in the notice of motion be otherwise dismissed.
The costs of the notice of motion to date be reserved.
The Court’s reasons for judgment be published in the first instance only to the parties to these proceedings.
Direct the appellant to notify the Associate to McHugh JA of any objection to the publication of the Court’s reasons for judgment within 7 days of the date of these orders, to the intent that the reasons will otherwise be published without restriction.
**********
Publication restriction lifted – decision published.
Ittyerah
Legal Profession Admission Board
(2000) 203 CLR 172
(1976) 135 CLR 616
(2008) 172 FCR 394
(1946) 71 CLR 421
(2019) 236 LGERA 35
(2019) 99 NSWLR 447
Prayer 1, seeking permission to adduce additional evidence, was stood over to the appeal hearing. The question of leave to issue a subpoena or subpoenas to Dr Eagle was stood over to the Registrar after service of her supplementary report. The remainder of prayer 2 was dismissed, including the request for subpoenas to the appellant’s ART colleagues. Costs were reserved. The reasons were initially restricted to the parties, subject to the appellant’s opportunity to object to publication within seven days.
In the result, I have decided:
The question whether the appellant should be permitted to adduce the additional evidence on the appeal is a matter for the judges hearing the appeal, and is stood over to the hearing of the appeal.
Leave to issue subpoenas to the appellant’s work colleagues is refused.
The question whether leave should be granted to issue a subpoena or subpoenas to Dr Eagle is stood over to the Registrar of the Court of Appeal, to be determined following service of a supplementary report by Dr Eagle.
The appellant complained about the failure to record Dr Eagle’s assessment consultation and submitted that the Board had denied him procedural fairness. The Board considered that these objections mistook the nature of the process, which was not adversarial. Instead, “The Board was seeking the opinion of an independent (and eminent) healthcare professional to assist the Board with an assessment of [the appellant’s] fitness to practise law.” (It might be noted that the emphasis on Dr Eagle’s independence has some significance for the question of Dr Eagle’s compellability as a witness discussed below.)
The appellant also complained about factual inaccuracies in the report, and aspects of Dr Eagle’s capacity to understand his factual account. Again, the Board considered that these objections mistook the function of the report which was not to adjudicate on facts following an adversarial process, but to explain an evaluative process undertaken by healthcare professional.
It is convenient at this point to note a distinct but related issue: on the same day he received a copy of Dr Eagle’s report, the appellant wrote to her seeking her consent to disclose to the Board a covert audio recording he had made of their consultation. Dr Eagle replied that she did not consent to the recording being made, that she was unaware that it was being made and that she did not consent to the recording being disclosed to the Board. That recording is not immediately relevant to the present notice of motion. But it is noted for completeness, given that the Board was concerned about the circumstances in which the recording was made (even if, which the Board considered doubtful, the recording was lawful), and these issues appear to have informed the Decision: see Reasons at [24]-[25], [37]-[41].
The main strands of the Board’s reasoning have been noted above: Dr Eagle’s diagnosis and related opinions; the appellant’s unwillingness to follow Dr Eagle’s recommendations as to treatment; and the appellant’s covert recording of the consultation with Dr Eagle.
The Board concluded as follows in its Reasons at [42]:
Fourthly, the Board submits that there is a real prospect that the Board would wish to respond to any evidence given by the lay ART witnesses, including by way of expert evidence. The Board submits that it is in the interests of procedural fairness and the overriding purpose in s 56 of the Civil Procedure Act (the just, quick and cheap resolution of the real issues in the proceedings) that the evidence of the ART witnesses be given by affidavit. I accept these submissions and give them considerable weight.
Fifthly, the three judges hearing the appeal will be in a better position to determine whether the evidence of the ART witnesses should be permitted if that evidence has been reduced to affidavit form.
For the reasons given above, in all the circumstances I do not consider there to be a sufficient reason on the material before the Court for granting leave pursuant to r 7.3 to have subpoenas issue to the two ART witnesses.
That part of the notice of motion will be dismissed.
Whether it is necessary to establish error on such an appeal (cf Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [6]-[9] per Meagher JA, addressing s 89(4) of the Legal Profession Uniform Law Application Act 2014 (NSW), which contains some language similar to that of Uniform Law s 28; and see Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23], addressing the need to show error in appeals by way of rehearing from courts of law.)
What status the evidence which was before the Board has on a s 26 appeal (cf Federal Commissioner of Taxation v Sagar (1946) 71 CLR 421; [1946] HCA 6 at 423 per Williams J; Commissioner of Patents v Sherman (2008) 172 FCR 394; [2008] FCAFC 182 at [30]-[33], [37]-[38]).
The parties helpfully addressed those questions in their supplementary submissions. However, it is not necessary to resolve the issues raised, in light of a significant narrowing of the issues on the notice of motion.
Here, r 23(3)(d) of the Uniform Admission Rules authorised the Board to appoint “one or more appropriately-qualified persons (one of whom must be a registered medical practitioner) as a health assessor”. The contents of the report are not at large, but are governed by rr 23(2) and 24(1). The evident purpose of the requirement for a registered medical practitioner is that it ensures that the assessment is carried out independently, and based on the practitioner’s medical expertise. The Board itself recognised that in its Reasons when it said: “The Board was seeking the opinion of an independent (and eminent) healthcare professional to assist the Board with an assessment of [the appellant’s] fitness to practice law” (Reasons at [34]).
That being so, when Dr Eagle consulted with the appellant, made notes for the purposes of forming her opinions, and gave the Board her r 24(1)(a) report (“a report setting out the health assessor’s findings” as to the appellant’s ability, for reasons of health, satisfactorily to carry out the inherent requirements of legal practice), those were all matters for Dr Eagle’s independent professional judgment. The Board could not “direct” Dr Eagle as to those matters, or as to how she went about them. Most importantly, the Board could not direct her as to what opinion she should form. Dr Eagle was thus not “acting at the direction of” the Board within the meaning of Uniform Law s 467(2)(f), and was accordingly compellable.
It follows that if, following service of the supplementary report, the appellant presses for a subpoena to issue to Dr Eagle, I would expect that, unless there was some change of circumstances, the question of leave under UCPR r 7.3 would be determined on the basis that Uniform Law s 468(1) does not give rise to any question of a lack of utility in the circumstances of this case.