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[2025] NSWSC 567
General information, not legal advice.
Supreme Court of NSW
2025-06-03
Harrison CJ at CL
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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: Maea v Acciona Infrastructure Australia Pty Ltd [2025] NSWSC 567
Hearing dates: 27 May 2025
Date of orders: 3 June 2025
Decision date: 03 June 2025
Jurisdiction: Common Law
Before: Harrison CJ at CL
Decision: (1) Dismiss the defendant’s application pursuant to UCPR 1.12 extending until 9 May 2025 the time for service of the report of Carl Strautins dated 17 April 2025.
(2) Dismiss the defendant’s application pursuant to UCPR 31.28 for leave to rely upon the report of Carl Strautins dated 28 April 2025.
(3) Pursuant to UCPR 1.12, extend until 9 May 2025 the time for the service of the unsigned evidentiary statement of Ashley Coates.
(4) Dismiss the defendant’s application pursuant to UCPR 23.4 for an order that the plaintiff be required to undertake psychometric testing.
(5) Order the defendant to pay the plaintiff’s costs of and incidental to the defendant’s notices of motion filed 1 May 2025 and 12 May 2025.
(6) Make no order as to the costs of the cross defendant.
Catchwords: CIVIL PROCEDURE – experts reports – service of experts reports – notice of motion to extend time to serve expert evidence and unsigned evidentiary statement – whether there are ‘exceptional circumstances’ that warrant a grant of leave to rely upon expert reports – where there is no explanation for extensive delay in serving expert evidence – where defendant has identified difficulties in witness adopting unsigned evidentiary statement
CIVIL PROCEDURE – medical evidence – psychometric testing – notice of motion to require plaintiff undertake psychometric testing – where expert has expressed the opinion that plaintiff was ‘malingering’ – whether the proper purpose of the application is for a medical examination – where application is disguised as an attempt to impugn plaintiff’s credit
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59
Uniform Civil Procedure Rules, rr 1.12, 23.4, 31.28
Cases Cited: Corke v Shopping Centres Australasia Property Group Re Limited trading as Cabarita Beach Shopping Centre [2024] NSWSC 1019
Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290
Category: Principal judgment
Parties: Siosaia Maea (Plaintiff)
Acciona Infrastructure Australia Pty Ltd (Defendant)
Bleasdale National Personnel Pty Ltd ATF Lindales Personnel Australasia Unit Trust t/a
Bleasdale National Contractors (Cross-Defendant)
Representation: Counsel:
M Best (Plaintiff/Respondent)
I Griscti (Defendant/Cross-Claimant/Applicant)
O J Dinkha (Cross-Defendant)
Solicitors:
Beilby Poulden Costello (Plaintiff/Respondent)
Barry Nilsson (Defendant/Cross-Claimant/Applicant)
Turks Legal (Cross-Defendant)
File Number(s): 2022/16236
Publication restriction: Nil
HIS HONOUR: Siosaia Maea was injured in the course of his employment with Bleasdale National Personnel Pty Ltd on 22 January 2019 when he fell through an unguarded manhole into a pit. Mr Maea sued the defendant Acciona Infrastructure Australia Pty Ltd, which he alleged was the design and construction contractor responsible for the Sydney Light Rail Project where he was working. Mr Maea did not sue his employer. The proceedings were commenced by statement of claim filed on 19 January 2022. The defence was filed on 21 November 2022.
On 29 August 2023, the defendant was ordered to serve expert evidence by 8 December 2023. It did not do so. On 14 December 2023, the time for the service of the defendant’s expert evidence was extended to 25 January 2024. The defendant did not serve any expert liability evidence by that date.
At a Status Review before Chen J on 15 November 2024, the defendant sought and obtained, over objection by Mr Maea, orders granting leave to serve any evidentiary statements and expert liability evidence by 20 December 2024. The defendant did not serve any liability evidence by that date. Chen J listed the matter for hearing on 15 September 2025.
At a Status Review before Chen J on 28 February 2025, his Honour noted the defendant’s intention to serve a further evidentiary statement and expert liability report by the end of March 2025. No further evidentiary statement or expert liability report was served by 31 March 2025.
By its notice of motion filed on 1 May 2025, the defendant relevantly moved the Court for orders pursuant to UCPR 1.12, extending until 9 May 2025 the time for the defendant to serve an expert report from Carl Strautins dated 17 April 2025 and the unsigned evidentiary statement of Ashley Coates. The defendant also sought leave pursuant to UCPR 31.28 to rely upon Mr Strautins’ expert report. Mr Maea opposes these orders.
UCPR 31.28 is as follows:
31.28 Disclosure of experts' reports and hospital reports
(1) Each party must serve experts' reports and hospital reports on each other active party--
(a) in accordance with any order of the court, or
(b) if no such order is in force, in accordance with any relevant practice note, or
(c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.
(2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.
(3) Except by leave of the court, or by consent of the parties--
(a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and
…
(c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.
(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied--
(a) that there are exceptional circumstances that warrant the granting of leave, or
(b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).
“…expert report of Mr Strautins was delayed, although his report is primarily focussed on issues relating to the cross claim. An initial letter of instruction was issued in December 2024, but his report was ultimately not finalised until 17 April 2025, following a second letter of instruction requesting his report comment on issues relevant to the cross claim.”
I have read Ms Schumacher’s affidavit and I listened closely to the evidence she gave in cross-examination. Neither in her affidavit nor her evidence before me did Ms Schumacher provide anything that could be described as an explanation for the delay. It must be remembered that on 29 August 2023, the defendant was ordered to serve expert evidence by 8 December 2023 but did not do so. Ms Schumacher does not refer to this order or to the reason, if any, that it was not complied with. Then on 15 November 2024, the defendant sought and obtained orders granting leave to serve any evidentiary statements and expert liability evidence by 20 December 2024. It did not do so. Ms Schumacher does refer to this order but does not provide any reason why it was also not complied with.
The defendant and Ms Schumacher appear to place reliance upon the fact that the defendant filed a cross claim against Mr Maea’s employer only as recently as 24 September 2024. Ms Schumacher says in terms in her affidavit that the “extent of any lay and expert evidence served in support of that cross claim was to be determined on receipt of the defence to the cross claim”, whatever that may mean. This saga of indecision about when or if the defendant should join Mr Maea’s employer to the proceedings appears to me to ignore or disregard the fact that the orders for the service of expert evidence, and the defendant’s obligation to comply with them, were made in the proceedings between the defendant and Mr Maea, who did not sue and has not since joined his employer as a second defendant. Even if Ms Schumacher’s evidence provides the reason why the defendant chose to take a particular course in the litigation and not file evidence as it was required to do, it does not amount to an explanation for the delay that was thereby occasioned. The joinder of the cross defendant is neither logically nor procedurally connected to or dependent upon the defendant’s separate obligation to comply with orders for the filing of evidence. The defendant’s attempt somehow to relate the two does not have any force.
In my opinion, the things on which the defendant wishes to rely in this context could never amount to exceptional circumstances. I was not unexpectedly referred to the decision of the Court of Appeal in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290. Paragraphs [66] and [67] in the judgment of Campbell JA should be noted:
“[66] Another question of construction concerned ‘exceptional circumstances’ in rule 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]-[69], I gave consideration to the expression ‘exceptional circumstances’ in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).
[67] In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005.”
Far from being exceptional, the circumstances to which the defendant refers in this case, whether taken alone or in combination, are ordinary, mundane, not unusual and perhaps somewhat regrettably, not out of the ordinary. There is no suggestion that Mr Strautins is the only expert in the field who could possibly provide the evidence the defendant wants him to provide. There is no evidence to suggest that attempts were made to qualify anyone else in his stead. The defendant appears simply to have proceeded somewhat hopefully upon the basis that the joinder of Mr Maea’s employer would alter the litigious landscape and that it was appropriate to put compliance with the rules and orders of the court on hold until that became clear.
Nor do I perceive that anything in the quoted sections of the Civil Procedure Act 2005 assists the defendant. These proceedings commenced in 2022. In the three and a half years since, Mr Maea still does not have an expert report from the defendant that has been served in accordance with the rules or an order of the court and he does not have what I consider to be an explanation of why that is so. Quite apart from the total absence of exceptional circumstances, the overriding purpose and the dictates of justice do not otherwise seem to me either to support or compel the favourable exercise of any discretion to extend time for the service of the defendant’s expert reports.
Then by its further notice of motion filed on 12 May 2025, the defendant sought orders pursuant to UCPR 23.4 that Mr Maea be required to undertake psychometric testing by Dr John McMahon on 10 June 2025 or on some other date suitable to the plaintiff and to the doctor. The inspiration for this application is to be found in the report of Dr Leonard Lee, a psychiatrist, dated 28 March 2025, who examined Mr Maea on the defendant’s behalf. In the course of his examination, Dr Lee conducted two psychometric tests, the Inventory of Problems and the Modified Somatic Perceptions Questionnaire. Dr Lee’s report was then in the following relevant terms:
“10. Conceptually, malingering is reflected in scores that are higher than those typically seen in non-malingering clinical patients, even those whose symptoms are magnified by psychological factors (e.g. somatization). Scores will reflect a hierarchy of exaggeration aetiologies…
11. [Mr Maea’s] score is 25 which indicates that his symptoms are exaggerated to a degree that is rarely seen except in persons who are known to be malingering.
…
19. [Mr Maea] is uncooperative and two psychometric tests are consistent with malingering. Accordingly, I am unable to provide him with a psychiatric diagnosis, as it is impossible to provide a diagnosis if malingering cannot be excluded, given the subjective nature of psychiatric symptoms.
…
21. I consider that [Mr Maea] is unlikely to need psychiatric treatment as he is markedly exaggerating his symptoms and is therefore unlikely to benefit from treatment.”
The defendant’s submissions in support of this application were as follows. In the present case, the key factors affecting the exercise of the Court’s discretion to make an order pursuant to UCPR 23.4 for Mr Maea to submit to psychometric testing appear to be whether the order is reasonable in light of information and advice received from experts and whether any refusal by him to attend an appointment is reasonable. The defendant contended that the circumstances have created a need objectively to balance the reasonableness of the defendant’s request with Mr Maea’s objection to ensure a just determination taking account of the parties’ reasonable requirements.
The defendant submitted further that psychometric testing is necessary to assist the Court to evaluate Dr Lee’s diagnosis of malingering, particularly as there was no indication of a potential diagnosis of malingering until it received Dr Lee’s report on 28 April 2025 and his revised report on 1 May 2025.
UCPR 23.4 is in these terms:
23.4 Order for examination
(1) The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place.
(2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination.
“[17] … I accept the plaintiff’s submission that the real, or ‘overriding’, purpose of the second defendant’s application is to determine whether the plaintiff might be malingering, that is to say whether he should be believed as to his history and symptoms. This is not a proper purpose for a medical examination under r 23.4 and is impermissible.
[18] In Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136, Hodgson JA (with Allsop P agreeing, and Tobias JA agreeing on this point (at [61])) said (at [35] and [49]):
‘There was also discussion in submissions of a possible distinction between tests that went directly to the medical condition of a party, and tests that merely went to the reliability of other tests. In my opinion, there is no sound basis for including the former type of tests and excluding the latter so long as the overriding purpose of the test is a medical examination, or bringing about a medical examination, when a person’s physical or mental condition is relevant to a matter in question.
In my opinion, the ordering of particular medical examinations must be for the purpose of obtaining evidence about a plaintiff’s medical condition and cannot be justified by the purpose of obtaining evidence that might go to the plaintiff’s veracity generally.’
[19] In Chopra v State of New South Wales (South Western Sydney Local Health District) [2023] NSWCA 142, Mitchelmore JA (with Kirk JA and Simpson AJA agreeing) said at [40]:
‘In determining the interlocutory application, the Court is not undertaking a type of trial in advance, and determining the application is not the occasion to attempt to reach a firm conclusion on the medical issues between the parties.’
[20] Her Honour also referred to the passages set out from Rowlands as an additional reason for refusing an order for neuro-psychometric testing (at [46]).
[21] When applying the overriding purpose test it is well to bear in mind the judgment of Basten JA in Boral Transport v Gulic [2013] NSWCA 150 (at [12]):
‘Evidential material may often have more than one use in a trial: so long as the ‘overriding purpose’ in seeking an examination is to assist in determining an aspect of the plaintiff's physical or mental condition, that will satisfy the rule. Accepting the reasoning of Tobias JA in Rowlands, it is the application for an order which cannot be for a collateral purpose, such as to obtain material to allow the ‘testing of a party's credibility’. The primary judge did not find that testing credibility was the overriding purpose of the application; the possible consequential use did not disqualify Boral's application in reliance upon the rule.’
[22] The purpose of the second defendant’s application, in my judgment, is captured in Ms De Souza’s email to Ms Goodlock of 19 February 2024, the former of whom I infer acting on the recommendations of Dr George and Dr Samuell (see [7]-[8] above), stated ‘the Defendants have engaged Dr Roldan to undertake a symptom validity testing… which can only be performed by a clinical psychologist’. No other purpose is identified.”
In the present case, there is no secret that the defendant wishes to have Mr Maea tested psychometrically in order to assess whether or not he is “malingering”. As it was put by Mr Griscti for the defendant, a more complete psychometric examination of Mr Maea would on one view permit Dr Lee to have greater confidence in providing “a non-diagnosis”. The purpose of the proposed examination by Dr McMahon is therefore not for, and has nothing to do with, any diagnostic assessment connected with Mr Maea’s claimed injuries or disabilities. It is in contrast clearly for what is a collateral, and as such impermissible, purpose. The application should not be allowed.
I note in passing, however, that Dr Lee’s position is that he is unable, by reason of his asserted lack of co-operation from Mr Maea, to provide the defendant with a psychiatric assessment of any value. Psychometric testing will not of itself cure that problem, even if it served to confirm Dr Lee’s suspicions. The issue of whether or not Mr Maea was actively refusing to co-operate, so that the defendant is at some forensic disadvantage in responding to his claims, will presumably remain a live question for assessment at the hearing, about which it is presently unnecessary to make any comment.
Finally, I note that the defendant also sought an order pursuant to UCPR 1.12 extending until 9 May 2025 the time for the service of the unsigned evidentiary statement of Ashley Coates. As far as I am aware, Mr Maea no longer objects to the defendant relying upon this statement. Having regard to the content of the statement, that is unsurprising. In any event, Ms Schumacher has identified a series of difficulties in obtaining Mr Coates’ co-operation in adopting and signing this statement. Ms Schumacher also gave reasons, which I accept, for the defendant’s reasonable disinclination to serve this statement before Mr Coates has indicated that it accorded with his recollection of the events he relates. The defendant should be permitted to rely upon Mr Coates’ statement.
As far as I am aware, no other matters require resolution. Accordingly, I make the following orders:
Dismiss the defendant’s application pursuant to UCPR 1.12 extending until 9 May 2025 the time for service of the report of Carl Strautins dated 17 April 2025.
Dismiss the defendant’s application pursuant to UCPR 31.28 for leave to rely upon the report of Carl Strautins dated 28 April 2025.
Pursuant to UCPR 1.12, extend until 9 May 2025 the time for the service of the unsigned evidentiary statement of Ashley Coates.
Dismiss the defendant’s application pursuant to UCPR 23.4 for an order that the plaintiff be required to undertake psychometric testing.
Order the defendant to pay the plaintiff’s costs of and incidental to the defendant’s notices of motion filed 1 May 2025 and 12 May 2025.
**********
Maea
Acciona Infrastructure Australia Pty Ltd [2025] NSWSC 567
(2009) 74 NSWLR 715
Make no order as to the costs of the cross defendant.