ORDERS
55 For those reasons, in my opinion orders 2 to 7 below should be set aside. However, in my opinion the evidence before the primary judge did justify adoption of a proposed timetable for medical examination of the applicant, including drug testing, with liberty to the respondents to apply for a stay of proceedings if the applicant does not comply with that timetable. Such orders, if not directly supported by Pt 23, are plainly within the power to stay proceedings given by s 67 of the Civil Procedure Act: cf Philips Electronics Australia Pty Limited v Matthews [2002] NSWCA 157; (2002) 54 NSWLR 598. To make such orders would in my opinion further the purposes set out in ss 56, 57 and 61(1) of the Civil Procedure Act.
56 This approach would have the advantage that, if the applicant chooses to claim privilege against self-incrimination, the merit of that claim can then be considered on an adequate basis on the respondents' application for a stay of proceedings. If that claim is made and not upheld, and if it appeared that the respondents were thereby prevented from obtaining reliable test results, there could then be a sound basis for either a stay of proceedings, or the establishment of a further timetable with appropriate costs orders made against the applicant.
57 Since writing the above, I have read the judgment of Tobias JA. There is force in his reasons for disagreeing with the orders I propose, but on balance I adhere to the views I have expressed. Subject to the possibility of self-incrimination, as to which the applicant is protected, the rights, privileges and immunities at risk do not in my opinion necessarily outweigh the respondents' entitlement to a fair trial; and having regard to the way the case was conducted below, in my opinion the evidence does justify a finding that the tests in question are at least highly desirable if the respondents are to have the benefit of evidence based on reliable neuropsychological testing.
58 For those reasons, I would propose that leave to appeal be granted, with the applicant to file a notice of appeal within fourteen days. The appeal should be allowed. Orders 2 to 7 below should be set aside, and in lieu thereof there should be orders that the respondents have liberty to apply for a stay of proceedings if the applicant does not in any respect comply with a specified timetable, which would in substance be an updated version of the sequence provided for in orders 2, 3, 5 and 6 below; and that there be the liberty provided in order 7 below. I would propose then that the costs of the motion below be costs in the proceedings; and that the respondents pay the applicant's costs of the application and appeal.
59 I would propose that the following orders be made on delivery of the judgment:
(1) Leave to appeal granted, applicant to file a notice of appeal within fourteen days.
(2) Appeal allowed.
(3) That the respondents submit short minutes of order giving effect to par [58] of these reasons within fourteen days, if there is consent to the short minutes; and if there is no consent, that the respondents submit their proposed version of the short minutes, with submissions, within fourteen days, with the applicant to submit its proposed short minutes, with submissions, within a further fourteen days.
60 TOBIAS JA: I have had the benefit of reading in draft the judgment of Hodgson JA. I agree with his Honour that the appeal should be allowed and that Orders 2 to 7 made by the primary judge should be set aside.
61 I also agree with his Honour's reasons at [31] for holding that r 23.4(1) should be construed as extending to routine tests or procedures (such as the taking of blood samples from a party) to be examined by a medical pathologist. The taking of x-rays, CAT scans and MRIs for examination by the appropriate medical expert would also be covered by the rule. Of course, as his Honour observes at [35] of his reasons, such tests must be relevant to the party's physical or mental condition where that is in issue in the proceedings. The rule cannot be used for a collateral purpose such as testing a party's credibility.
62 Although r 23.4(1) speaks of examination "by a specified medical expert at a specified time", I agree with Hodgson JA that a requirement to submit to the taking of a blood sample or an x-ray at a specified time to be examined by a specified medical expert (a pathologist or radiologist) falls within its terms.
63 Rule 23.4(2) provides a further power to require a party to submit to testing or procedures reasonably requested by a medical expert who is to examine a party pursuant to an order made under r 23.4(1). I see no reason why such a request cannot be made by the expert before, during or after an examination if required for the purposes of that examination.
64 I also agree with the remarks of his Honour with respect to the privilege against self-incrimination and with his identification of the errors of the primary judge which led to him making the orders under challenge.
65 However, where I respectfully part company with his Honour is with the orders he proposes at [58] for the reasons he articulates at [55]. I am unable to accept that the evidence before the primary judge was sufficient to justify the making of those orders. Essentially, my reasons for holding that view are as follows.
66 First, according to the affidavit of the solicitor, the contents of which are set out at [11] of his Honour's judgment, the purpose of the tests is to ensure that the proposed neuropsychometric testing by Dr Langeluddecke would or might be unreliable. But Dr Langeluddecke has not requested or proposed any such testing as is evidenced from the passage from her letter recorded by his Honour at [12] of his reasons. The doctor may or may not have considered the performing of such tests 24 hours before her examination of the plaintiff to be useful for the purpose of her testing of him. We just do not know.
67 Second, at least a significant reason for the tests is to avoid the throwing away of the costs of Dr Langeluddecke's testing if the plaintiff does not comply with the assurance to abstain which he is prepared to give and which is referred to at [20] of his Honour's reasons: see [26] and [27] of the solicitor's affidavit. But if this occurs and the plaintiff is otherwise successful in the litigation, then special orders relating to such costs could be sought.
68 Third, in my view it is a matter for Dr Langeluddecke rather than Dr Brown (see [5] of the affidavit) as to whether she requires such testing. If she does, then r 23.4(2) would mandate the plaintiff to submit to such tests as the doctor may reasonably request of him.
69 Fourth, until such tests are requested by Dr Langeluddecke, it is unknown whether she even considers that they are necessary before she can reliably perform the neuropsychometric testing and examination to which the plaintiff is required to submit. She may well consider them of no use because, for instance, the plaintiff could still use illicit drugs between the time he provides the required samples and the time he is seen and tested by the doctor. The taking of such samples may be more useful to Dr Langeluddecke if taken immediately after she performs her neuropsychometric testing rather than 24 hours beforehand. Again, the evidence on these issues is, in my opinion, deficient.
70 Fifth, as Hodgson JA points out at [19] of his reasons, the medical literature indicates that there are limitations with respect to each of the tests in question. Thus past use of illicit drugs up to 90 days before testing may be relevant to the plaintiff's credit but have limited, if any relevance for the purpose of detecting such use in the seven days before the test. Further, blood testing as long as 24 hours before neuropsychometric testing would appear to be of no benefit due to the rapid elimination of such drugs from the blood. Moreover urine testing for drugs other than alcohol is apparently only useful for about three days before the test which would not extend over the minimum of seven days abstinence sought by Dr Langeluddecke in her letter annexed to the solicitor's affidavit. The lack of any response from Dr Langeluddecke to these matters is, in my view, telling.
71 Accordingly, for the foregoing reasons in my view the only orders which should be made are that the appeal be allowed with costs, Orders 2 to 7 of the primary judge be set aside and that apart from Order 1 and an updated Order 2, the respondent's Notice of Motion be dismissed with costs.
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