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[2026] ACTSC 326
Supreme Court of the ACT
2026-08-31
Muller J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Laura Hall (a pseudonym) v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn (No 2) Citation: [2026] ACTSC 326 Hearing Date: 28 August 2026 Decision Date: 31 August 2026 Before: Muller J Decision: See [23] Catchwords: CIVIL PRACTICE AND PROCEDURE – STATUTORY INTERPRETATION – Powers of the court – claim in psychological injury – recovered memories – neuropsychological examination – expert evidence – power of the to order persons to do certain things Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth), s 33 Crimes (Forensic Procedures) Act 2000 (ACT) Court Procedures Rules 2006 (ACT), r 1205 Cases Cited: AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2; 100 ALJR 170 Coco v the Queen [1994] HCA 15; 179 CLR 427 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP [2023] FCAFC 24; 296 FCR 16 Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; 175 CLR 218 Starr v National Coal Board [1977] 1 WLR 63; 1 All ER 243 Wickes v Al-Mofathel [2015] ACTSC 266; 300 FLR 255 Parties: Laura Hall (a pseudonym) (Plaintiff) Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn (First Defendant) Trustees of the Sisters of Saint Joseph (Second Defendant) Representation: Counsel J Ronald (Plaintiff) J Moffett (First Defendant) B Jullienne (Second Defendant) Solicitors Chamberlains Law Firm (Plaintiff) Wotton Kearney (First Defendant) Carroll & O’Dea Lawyers (Second Defendant) File Number: SC 148 of 2024 Muller J:
In 1973, when she was aged about five years, Ms Hall commenced as a kindergarten student at St Matthew’s primary school in Page, ACT. She continued as a student at the school until she was aged about 10 years.
For most of that period Patrick Cusack was the school chaplain. He was also the parish priest at St Matthew’s church in Page which was located adjacent to the school. Ms Hall says she was repeatedly sexually abused by Cusack during her years at the school. As a consequence, she has suffered psychological injury and disability. In these proceedings she seeks damages from the local Archdiocese of the Catholic Church and from the Trustees of the Sisters of St Joseph who operated the school and the church.
A feature of Ms Hall’s claim is her delayed recall of the abuse she suffered. The medical records available to me suggest she first recalled the abuse when she was aged 39. As these proceedings have progressed, the issue of recalled memories has taken on greater significance in the case. In particular the Catholic Church now seeks orders directing Ms Hall to attend an assessment arranged by the defendants with Dr Andrew Gibbs. The application is supported by the Sisters of St Joseph. A component of that assessment was anticipated to be the administration of neuropsychological testing.
Dr Gibbs is a neuropsychologist and has worked as a registered psychologist for 25 years. He claims particular expertise in the area of memory and recovered memory. At this stage Ms Hall has not agreed to attend an assessment with Dr Gibbs. It is relevant to note Ms Hall has for many years lived in the United Kingdom and it is envisaged that any assessment would occur by way of audiovisual link.
The application was initially listed before me on 17 July 2026. At that time, I requested some additional information from the parties. I was particularly interested in: (a) the capacity of the currently retained psychiatrists, Dr Appler and Dr Dennerstein to address the issue of recalled memory; (b) the necessity for neuropsychological testing and the likely impact of such testing on Ms Hall; and (c) further elucidation of the reason why assessment with a new expert was said to be now necessary in light of the decision of the High Court in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2; 100 ALJR 170 as submitted in the affidavit evidence of Ms Lim relied upon by the church.
When the matter returned for further submissions on 28 August 2026 an additional development had occurred. Ms Hall’s expert psychiatrist, Dr Dennerstein, has retired from practice due to ill health. As a consequence, no further opinion is available from her about the issues I had raised with the parties. Perhaps more importantly, it is anticipated further expert evidence is now likely to be required in Ms Hall’s case from a psychiatrist or a psychologist or both. As a consequence of the last development, the position of the parties had shifted somewhat with both accepting the need for additional expert evidence to be obtained. There remains a point of difference as to the form that additional evidence should take. It is the residual point of difference which I address below.
The competing positions as to orders
Relevantly, Ms Hall proposes the following orders: 1. The application in proceeding dated 29 June 2026 be dismissed with no order as to costs. 2. The plaintiff is granted leave to serve any further expert evidence on which she intends to rely on or before 30 October 2026. 3. The second defendant is granted leave to serve any further medical expert evidence, on which they intend to rely on or before 20 December 2026.
The Catholic Church proposes these orders: 1. Pursuant to rule 1205(1)(g) of the Court Procedures Rules 2006 (ACT), the plaintiff is directed to attend two appointments for assessment with Dr Andrew Gibbs on: 1.1 Friday 13 November 2026 at 9:00am GMT United Kingdom Time; and 1.2 Friday 27 November 2026 at 9:00am GMT United Kingdom Time. 2. The plaintiff is to serve any further medical expert evidence, from an expert psychiatrist, on which she intends to rely on or before 30 October 2026; 3. The defendants are to serve any expert report of Dr Gibbs within 7 days after receipt of the expert report from Dr Gibbs.
The issues I am required to address as a consequence of the competing proposals are: (a) Should Ms Hall be permitted to serve further expert evidence and should it be limited as to scope? (b) Should the Catholic Church be permitted to serve further expert evidence and should it be limited as to scope? (c) Is there a power to compel Ms Hall’s attendance at a particular medical assessment? (d) Should neuropsychological testing be permitted and if so under what conditions? Should Ms Hall be permitted to serve further expert evidence?
The report of Dr Dennerstein is now quite dated and is based on assessments undertaken almost 3 years ago. It is almost inevitable that an updated opinion from that doctor would have been required prior to hearing. The opportunity to secure an updated opinion has been lost. The court has a broad discretion under the rules to make orders in relation to the service of expert evidence and the timing of service of that evidence: r 1205 of the Court Procedures Rules 2006 (ACT) (the Rules). Interests of justice considerations are paramount. The Catholic Church does not oppose Ms Hall securing further evidence from a psychiatrist. The dialogue with the parties in the course of submissions and the evidence already before me makes clear in the field of recovered memory it is often the case that input from a psychologist or neuropsychologist is appropriate because of their particular expertise in the field of memory. As this is clearly now a case where the issue of recovered memory looms large, I am disinclined to limit Ms Hall to reliance upon psychiatric evidence alone. I therefore propose to make orders permitting her to serve additional expert evidence from a psychiatrist, psychologist or neuropsychologist.
Should the Catholic Church be permitted to serve further expert evidence?
Is there power to compel Ms Hall’s attendance at a particular medical appointment?
The Catholic Church contends the power to do so exists under r 1205(1)(g) of the Rules. It draws comfort from the decision of Refshauge J in Wickes v Al-Mofathel [2015] ACTSC 266; 300 FLR 255.
In that case the court was concerned with the application of the pre-court procedures under the now repealed Road transport (Third-Party Insurance) Act 2008 (ACT). Much of that decision was concerned with the particular obligations of parties under the repealed motor accidents legislation and has no relevance here. At [30] Refshauge J turned to address the issue of compulsion to attend a medical examination. His Honour commenced with the observation that a medical examination is an invasion of the liberty of an individual: Starr v National Coal Board [1977] 1 WLR 63; 1 All ER 243 at 70. However, his Honour recognised the scope for a statute to interfere with that liberty, for example, the Crimes (Forensic Procedures) Act 2000 (ACT). Reflecting on the balancing exercise required in considering the interests of the fundamental rights of each of the parties to litigation his Honour quoted with approval the passage from the decision of Scarman LJ in Starr at 71: First, as mentioned in Pickett’s case by Willmer and Donovan L.JJ. and by Sachs L.J. in Lane’s case, there is the plaintiff’s right to personal liberty. But on the other side there is an equally fundamental right – the defendant’s right to defend himself in the litigation as he and his advisors think fit: and this is a right which includes the freedom to choose the witnesses that he will call. It is particularly important that a defendant should be able to choose his own expert witness, if the case be one in which expert testimony is significant.
At [41]-[42] his Honour, Refshauge J, observed: Since then it has been accepted that, in personal injury matters, a court may stay the proceedings where a plaintiff unreasonably refuses to undergo a medical examination sought by a defendant. See the discussion of the history of this jurisdiction by Blow J in Campbell v Biernacki (2009) 19 Tas R 345 at 351-2; [20]-[26]. This is an approach that has been adopted in this jurisdiction, first by Blackburn CJ in Neill v Commonwealth (Unreported, Australian Capital Territory Supreme Court, SC No. 209 of 1982, 9 September 1982) and later by Gray J in Lambert v ACT Nursing Services Pty Ltd (2007) 214 FLR 422 at 429-30; [26]-[30].
Ultimately the position reached in Wickes was there was no statutory power authorising the court to order Ms Wickes to undergo a medical examination. His Honour had no cause to address the secondary issue of a stay of proceedings where there was a refusal to submit to examination, as in the Wickes case the proceedings were already stayed.
More recently the same issue was considered by the full Court of the Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP [2023] FCAFC 24; 296 FCR 16. There the court had cause to consider whether s 33 of the Administrative Appeals Tribunal Act 1975 (Cth), which provided various powers to direct parties in proceedings before the tribunal, extended to empowering the tribunal to compel attendance at a medical examination. Section 33(2A) in non-exhaustive terms set out the directions as to procedure that are open to the Tribunal under s 33: (a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or (b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or (c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or (d) limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or (e) require witnesses to give evidence at the same time; or (f) limit the time for giving evidence or making oral submissions; or (g) limit the length of written submissions.
After careful analysis of a number of relevant authorities including Coco v the Queen [1994] HCA 15; 179 CLR 427 at 437 and Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; 175 CLR 218 at 309 the court concluded at [81]: In summary, before a court or tribunal in Australia can require [a] person to undergo a medical examination against their will, the legislature must confer the power to do so in clear and unmistakable terms. This expression of the principle of legality is consistent with the decision of the High Court in Marion’s Case. In that case, respecting the need for consent before a surgical procedure might be performed, McHugh J observed (at 309) that “the common law accepts that a person has rights of control and self-determination in respect of his or her body which other persons must respect”.
Returning to r 1205 of the Rules, and accepting that a direction to participate in a medical examination, physical or otherwise, constitutes an invasion of the liberty of the person, I am not satisfied in its express terms r 1205 empowers the court to make an order abrogating that fundamental right. In the absence of any other express statutory power to that effect the court is unable to make an order compelling attendance at a medical examination.
That leaves the issue of a stay of proceedings. To order a stay at this point would be entirely premature. The parties each accept further medical assessment is required. It is the scope of that assessment and the persons who may be permitted to perform it that is in issue.
Should neuropsychological testing be permitted and, under what conditions?
The information presently before me does not enable this issue to be determined. Before I could be satisfied such testing was appropriate there would need to be evidence demonstrating why it was needed, and that it could be performed in a way that would not negatively impact Ms Hall’s psychological health. I am also mindful of the challenges arising from learned responses with the administration of that kind of testing. Dr Gibbs suggests repeat testing should not occur without an interval of at least 12 months having passed. That means if appropriate testing was performed at the request of one party, there would be a delay of at least 12 months before comparable testing could be performed by the other party. That is unless there was an agreement for the data arising from the testing to be shared.
In all the circumstances, where a party reaches the position they consider there is a need for neuropsychological testing I would contemplate making an order under r 1205 for a joint assessment, thus facilitating the availability of the data obtained for the benefit of each of the parties.
I am mindful in making the orders set out below Ms Hall has not at this stage consented to undergo an assessment with Dr Gibbs. In making orders permitting her to obtain and rely upon additional psychiatric and psychological evidence, it would be open to the Catholic Church to assert some prejudice, were Ms Hall to maintain her resistance to facilitating the securing of evidence in reply. If that situation eventuates it is likely to provide a reasonable foundation for a stay order.
Orders
I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 31 August 2026
Laura Hall (a pseudonym)
Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn (No 2)
[1994] HCA 15
(2009) 19 Tas R 345
(2007) 214 FLR 422