Rowlands v State of New South Wales

CATCHWORDS: PROCEDURE - Medical examination - Neuropsychological testing - Reliability of such testing affected by drug use - Defendants seek order that plaintiff submit to drug testing - Whether such an order authorised by UCPR Part 23 - Whether such an order precluded by privilege against self-incrimination - Whether such an order justified by the evidence - Relevance of power to stay proceedings - Form of orders.

LEGISLATION CITED: Civil Procedure Act 2005, ss 56, 57, 61, 67 Uniform Civil Procedure Rules 2005, Part 23.

Azzopardi v the Queen [2001] HCA 25; (2001) 205 CLR 50 Council of NSW Bar Association v Archer [2008] NSWCA 164 Fernando v Commissioner of Police (1995) 36 NSWLR 567 Herbert v O'Neill (Supreme Court of New South Wales, Sharpe J, 30 November 1979, unreported)) CASES CITED: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 Philips Electronics Australia Pty Limited v Matthews [2002] NSWCA 157; (2002) 54 NSWLR 598 Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 Suttor v Gundowda Pty Limited [1950] HCA 35; (1950) 81 CLR 418 In Re Westinghouse Uranium Contract [1978] AC 547

PARTIES: Glen ROWLANDS (Appellant) STATE OF NEW SOUTH WALES (Respondent)

COUNSEL: S NORTON SC/ L GOODCHILD (Appellant) V HEATH (Respondent)

SOLICITORS: Brydens Law Office (Appellant) McCabe Terrill Lawyers (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40306/08 DC 4518/07

ALLSOP P HODGSON JA TOBIAS JA

3 JUNE 2009 Glen ROWLANDS v STATE OF NEW SOUTH WALES Judgment 1 ALLSOP P: I agree with Hodgson JA. As Hodgson JA does, I recognise, if I may respectfully say, the force of the reasons of Tobias JA. However, I agree with Hodgson JA that having regard to how the case was conducted below the evidence is sufficient to warrant the form of orders which his Honour proposes. 2 HODGSON JA: The applicant has brought proceedings against the respondents claiming damages for injuries alleged to have been caused by the negligence of the respondents. An important question in the case will be the extent to which the applicant's cognitive abilities have been affected by the relevant accident. The respondents claim that an assessment of the applicant's present cognitive abilities would be affected by drug-taking by the applicant in days preceding that assessment. 3 The respondents brought a notice of motion in the District Court seeking (relevantly) the following orders: 2. The Plaintiff is to attend the appointment with the consultant clinical neuropsychologist, Dr Pauline Langeluddecke, on 15 October 2008 at 9:30 am as notified to his solicitors by the First Defendant. 3. The Plaintiff is to submit to collection of urine, blood and hair samples by a medical practitioner for the purposes of drug screening on or about 14 October 2008, at a time date and location notified to the Plaintiff's solicitors by the First Defendant by 7 October 2008. 4. Alternatively, if the Plaintiff fails or refuses to submit to collection of urine, blood and hair samples by a medical practitioner in accordance with order 3 the proceedings be stayed until further order. 5. If such results as are available to the First Defendant before the appointment on 15 October 2008 with Dr Pauline Langeluddecke in respect of the plaintiffs drug screening reveal illicit drug use within the previous seven day period, the First Defendant may cancel and re-schedule that appointment and the Plaintiff is to attend on any re-scheduled appointment reasonably notified to his solicitors and to further submit to collection of urine, blood and hair samples by a medical practitioner for the purposes of drug screening as notified to the Plaintiffs solicitors by the First Defendant; 6. If such results as are only available to the First Defendant after the appointment on 15 October 2008 with Dr Pauline Langeluddecke in respect of the plaintiffs drug screening reveal illicit drug use within the previous seven day period, the plaintiff is to attend any further scheduled appointment for re-examination and re-testing reasonably notified to his solicitors and to further submit to collection of urine, blood and hair samples by a medical practitioner for the purposes of drug screening as notified to the Plaintiffs solicitors by the First Defendant; 7. In the event the Plaintiff fails to attend on any appointment or cooperate in any testing in accordance with these orders or returns a positive drug test the First Defendant has liberty to apply for costs orders and further orders on 3 days notice. 4 On 27 June 2008, Robison DCJ made those orders, and ordered the applicant to pay the first respondent's costs of the motion. 5 The applicant seeks leave to appeal from those orders. The applicant for leave has been heard on the basis that, if leave is granted, the appeal will be dealt with without further submissions.

Statutory provisions 6 The application requires consideration of Pt 23 of the Uniform Civil Procedure Rules 2005 (UCPR). 7 Division 1 of Pt 23 includes the following rules: 23.1 Application and definitions

(1) This Division applies to proceedings in which: (a) a person's physical or mental condition is relevant to a matter in question, and (b) either: (i) that person is a party, or (ii) that person is a person for whose benefit a party is claiming relief under the Compensation to Relatives Act 1897. (2) In this Division: first party means the party referred to in subrule (1) (b). medical examination includes any examination by a medical expert but does not include tests referred to in Division 2. medical expert includes dentist, medical practitioner, occupational therapist, optometrist, physiotherapist and psychologist. notice for medical examination means a notice referred to in rule 23.2 (1). person concerned means the person referred to in subrule (1) (a) (whether or not the first party) whose physical or mental condition is relevant to a matter in question.

(1) Any party other than the first party may serve on the first party a notice for the medical examination of the person concerned. (2) A notice for medical examination is to be in the form of a request that the person concerned submit to examination by a specified medical expert at a specified time and place.

(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.

23.5 Medical expert for person concerned The person concerned may have a medical expert of his or her choice attend a medical examination under this Division. 8 Division 2 of Pt 3 comprises the following two rules: 23.6 Application and definitions

(1) This Division applies to proceedings in which the extent of impairment of a party's earning capacity due to personal injuries to that party is relevant to any matter in question. (2) In this Division:

occupational rehabilitation service has the same meaning as it has in section 59 of the Workers Compensation Act 1987. party concerned means the party referred to in subrule (1).

(1) The court may make orders for testing the party concerned for the purpose of assessing the extent of impairment of the party's earning capacity, including an order to submit to a test, under the direction of a medical practitioner, during a specified period and at a specified place. (2) The specified place referred to in subrule (1) may be: (a) a hospital, or (b) a rehabilitation centre conducted by a hospital, or (c) some other suitable place, at which treatment by way of rehabilitation, or an occupational rehabilitation service, is provided. (3) If the court makes an order under subrule (1) that the party concerned submit to a test, the party concerned must do all things reasonably requested, and answer all questions reasonably asked, by any medical practitioner, or by any person conducting the test, for the purposes of the test. (4) The terms on which the court may make orders under subrule (1) include terms for the payment by the party obtaining the order to the party concerned of any expense or loss incurred in complying with the order. 9 Rule 23.9 provides as follows: 23.9 Default

(1) If a party makes default in compliance with this Part, or a notice or order under this Part, the court may give or make such judgment or such order as it thinks fit, including: (a) if the party in default is a plaintiff, an order that the proceedings be dismissed as to the whole or any part of the relief claimed by the party in the proceedings, or (b) if the proceedings were commenced by statement of claim and the party in default is a defendant, an order that the party's defence be struck out and that judgment be given accordingly. (2) If a person for whose benefit relief is being claimed, not being a party, makes default in compliance with this Part, or an order under this Part, the court may give such judgment, or make such order, as it thinks fit, including an order that the proceedings be dismissed as to the relief so claimed. (3) This rule does not limit the powers of the court to punish for contempt. 10 Also relevant are ss 56 and 57, 61(1) and 67 of the Civil Procedure Act 2005. Those sections are as follows: 56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in subsection (3). (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.

(1) For the purpose of furthering the overriding purpose referred to in section 56(1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

61 Directions as to practice and procedure generally

(1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. ……

67 Stay of proceedings Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.

Hearing before primary judge 11 The application before the primary judge was supported by an affidavit dated 4 June 2008 by the solicitor with the day-to-day conduct of the matter for the respondents. Relevantly, the affidavit included the following: 2. The Plaintiff claims damages for personal injuries including brain injury alleged to have impaired the Plaintiff's intellectual functioning, planning, conceptual reasoning, memory, concentration and other brain functions. I am instructed that the nature and extent of any such brain injury and intellectual disability is in dispute in the proceedings. The dispute arises in the context of evidence that has been served by the Plaintiff to the effect that the Plaintiff before the date of injury and since has used illicit drugs, including cannabis, ketamine and amphetamine and has suffered from previous head trauma and may suffer from a constitutional psychiatric disorder (I refer to the reports of Dr Ong and Dr Jungfer). 3. I am informed by Dr Lisa Brown psychiatrist that examination by a consultant neurologist is necessary for the preparation of the First Defendant's case for the purpose of determining the extent of the brain injury suffered by the Plaintiff if any in the subject accident and if possible to distinguish between any such damage and pre-existing or subsequent damage caused by the Plaintiff's drug-use, other head trauma or other psychiatric condition. It may be that the neurologist will recommend additional testing that will need to be the subject of further application by the First Defendant. 4. I am informed by Dr Lisa Brown psychiatrist that examination and testing by a consultant neuropsychologist is necessary for the preparation of the First Defendant's case to respond to the report of Dr Jungfer who conducted such testing on the Plaintiff. 5. I am informed by Dr Lisa Brown psychiatrist that neuropsychological testing will be unreliable if the Plaintiff is using illicit drugs in at least the week before testing, although there also may be long-term effects of drug-use. 6. Annexed hereto and marked "A" is a letter dated 8 November 2007 from the plaintiff's solicitors advising that the plaintiff will not be submitting to a urine test. 7. On 28 December 2007 we wrote to the plaintiff's solicitors reiterating our request for the plaintiff to submit to a urine drug screening test, as the issue of the plaintiff's drug use is central to his case, in terms of both liability and causation of damage. Annexed hereto and marked "B" is a copy of that letter. 8. Annexed hereto and marked "C" is a letter dated 23 January 2008 from the plaintiff's solicitor advising that they are seeking instructions from the plaintiff as to whether he will undergo urine testing. 9. The first defendant arranged an appointment for the plaintiff to be examined by Dr Lisa Brown on 24 January 2008. Dr Brown's report was dated 5 February 2008 and has been served upon the solicitors for the plaintiff. 10. On 22 February 2008, the plaintiff's solicitor served us with the treatment report of Dr Ong, General Practitioner, dated 20 August 2007. [sentence rejected T 17] 11. Annexed hereto and marked "D" is the letter of service from Brydens dated 21 February and the said treatment report of Dr Ong (the plaintiff's treating general practitioner), dated 20 August 2007. 12. Annexed hereto and marked "E", is our letter dated 22 February 2008, re-serving the report of Dr Ong, upon the plaintiff. 13. We sent a further request on 14 April 2008 to the plaintiff, requesting amongst other things (that are on a without prejudice basis), that the plaintiff submit to drug testing. 14. The plaintiff responded on 15 April 2008, commenting that they will be taking instructions and advice from senior counsel. 15. On 29 April 2008, we again wrote to the plaintiff's solicitor, this time requesting that the plaintiff submit to blood, urine and hair testing for the purposes of drug screening, as it would provide a more accurate representation of the plaintiff's drug abuse or non-use, as alleged by the plaintiff. In particular, hair testing would reveal drug use further back than a few days to a week, which is all the blood and urine tests would be able to indicate. Furthermore, we advised of the possible consultancy dates of Professor Paul Spira, a consultant neurologist and Dr Pauline Langeluddecke, a clinical neuropsychologist, who we wished the plaintiff to be examined by and sought the plaintiff's preferred consultation dates. Annexed hereto and marked "F" is a copy of our letter dated 29 April 2008. 16. On 7 May 2008, I telephoned Messrs Brydens to ask whether the plaintiff would be consenting to our requests made by said letter dated 29 April 2008; namely to attend the medical appointments and undergo drug testing. I was not able to speak with anyone who was familiar with the day-to-day conduct of the matter and so I left a voicemail message asking for the contact person, Teresa McLachlin return my call. 17. On 7 May 2008, I again telephoned Messrs Brydens to ask whether the plaintiff would be consenting to our requests made by said letter dated 29 April 2008; namely to attend the medical appointments and undergo drug testing. I was not able to speak with anyone who was familiar with the day-to-day conduct of the matter and so I left a message asking for Lee Hagipantelis to return my call. 18. As we did not receive any response to our letter or the two said follow up phone calls, on 7 May 2008, we proceeded to book the appointments with Professor Spira and Dr Langeluddecke, as the wait times for these appointments are quite long and we had to act quickly in order to secure appointments this year. 19. In order to have a reliable neuropsychometric test, it is necessary that the plaintiff to be "clean" in respect of any illicit drug use, as any such current use at the time of testing will contribute adversely to the test results. 20. Annexed hereto and marked "G" is a copy of a letter from Dr Pauline Langeluddecke dated 14 May 2008, confirming the appointment scheduled for the plaintiff on 15 October 2008 at 9.30am. 21. The letter also sets out the terms and conditions of the initial appointment/report, including the requirement that the plaintiff avoid using alcohol at least 24 hours before the testing, and to abstain from illicit drug use for at least one week before the testing. 22. A copy of this letter was hand delivered to the plaintiff's solicitors on 20 May 2008 under cover of a letter dated 19 May 2008, during the status conference in Court which occurred that day. Annexed hereto and marked "H" is a copy of our letter dated 19 May 2008 enclosing the letter of Dr Langeluddecke. 23. On 15 May 2008, we wrote to the plaintiff's solicitor enclosing for their consideration prior to the status conference, a draft timetable for 20 May 2008 and informing the plaintiff of the two medical appointments arranged with Professor Paul Spira and Dr Pauline Langeluddecke. Annexed hereto and marked "I" is a copy of that letter and draft timetable. We also emphasised the importance of the plaintiff submitting to drug screening so that any psychometric testing carried out by Dr Langeluddecke would not be rendered invalid. 24. Also on 15 May 2008, I prepared a "not ready statement", in the form of an affidavit, which was forwarded to Judicial Registrar McDonald outlining our position in relation to the medical appointments and the need for the plaintiff to undergo drug screening. I crave leave to refer to my previous affidavit affirmed on 15 May 2008, in respect of the present application. 25. In the circumstances and in order to properly determine the diagnosis/es, the severity of the plaintiff's disabilities and the causation of these disabilities, it will be necessary for the plaintiff to undergo drug screening within 24 hours prior to the appointment with Dr Langeluddecke on 15 October 2008. 26. Should the plaintiff not be free of drugs at the time of neuro psychometric testing, not only will a large amount of costs be thrown away in relation to report fees, non attendance fees or cancellation fees, but neither of the parties will be any the wiser as to the true extent of the plaintiff's injuries arising as a result of the motor vehicle accident on 5 May 2008, if any. 27. It is therefore imperative that we obtain the orders sought in the notice of motion filed herein in order to have any meaningful medical assessment carried out on the plaintiff and to protect our client's interests in relation to costs, in the event that the plaintiff does not attend the medical appointments arranged. 12 Paragraph 19 of the affidavit was treated as a submission, not evidence. It would seem that the same must be true of pars 25 to 27. Paragraphs 3 to 5 were objected to, and allowed by the primary judge on the ground that this was an interlocutory matter. In relation to par 20, what the relevant letter actually asserted was: Please inform the plaintiff in writing that …

5. he/she should take regular medications in the usual dosage prior to the assessment but should avoid using alcohol at least 24 hours before and illicit drugs for at least one week before. 13 The deponent of that affidavit was not required for cross-examination. A bundle of documents was also tendered on behalf of the respondents. Counsel for the applicant complained that the applicant had not been aware that this material (one and half inches thick) would be relied on, but said that the applicant had been served with at least some of it. 14 These documents included medical reports and also articles concerning such matters as drug-testing methods. 15 One of the medical reports was a report from Dr Jungfer (the applicant's treating psychiatrist) dated 31 October 2005, which stated (p 25 of the bundle) that on 28 September 2005 the applicant denied using cannabis, that Dr Jungfer sent him off for a urine drug screen, and that this demonstrated that the applicant was using cannabis. 16 Another report of Dr Jungfer, dated 5 October 2007, stated (p 42) that cognitive effects detected in the neuropsychometric assessment were due to the head injury but "there may be some role for substance abuse affecting particularly his speed of information processing". This report also stated (p 50) that the applicant "has always been highly evasive regarding his substance use and it would be appropriate that he have a urine drug screen". It also stated (p 51) "his substance abuse if this is continuing could affect his cognitive performance and in particular could be causing some of the abnormalities that he reports". 17 The bundle also included a report dated 5 February 2008 from Dr Brown (a psychiatrist engaged by the respondents), which stated: With respect to Mr Rowlands' report of a decline in his level of occupational status and him working in a more unskilled role, it is unclear whether this change reflects his cognitive deficits related to the accident or might reflect a broader picture of a quiescent psychotic disorder and/or ongoing use of marijuana. This substance has a particularly amotivational effect and unless Mr Rowlands is willing to undergo urinary drug testing there is no way to confidently support his account that he has only rarely smoked cannabis in the post-accident period … 18 I note there was a somewhat similar comment by Dr Jungfer in a report dated 8 February 2006 (p 23). 19 The articles gave information about drug testing methods. They suggested that blood tests tend not to be routinely used, because of their intrusiveness and because most drugs are rapidly eliminated from the blood. They suggest that hair tests tend not to be routinely used because, while they may provide accurate information concerning past use, they cannot address the issue of drug use at the time of collection. It seems that hair tests are expensive, and while they can detect drug use up to as much as 90 days before the hair is taken, passive ingestion can result in a false positive. Urine testing is not a reliable method for detecting alcohol use, but appears to be quite reliable in relation to other drug use up to about three days before the urine is taken (see for example p 137). 20 No evidence was given by or on behalf of the applicant. However, the applicant's counsel said the applicant would give assurances that he would not drink alcohol in the 24 hours before any test and would not use illegal drugs for seven days before any test. 21 For the applicant it was submitted to the primary judge that the orders sought were beyond power, referring to Fernando v Commissioner of Police (1995) 36 NSWLR 567. It was also submitted that the evidence relied on was inadequate, particularly because there was no sworn and testable evidence from a medical expert as to the necessity of abstinence before testing. It was submitted that the District Court did not have power to make the orders sought. It was pointed out that these orders would impinge on fundamental rights and freedoms. It was put that there would have to be a high level of certainty of prejudice of a trial before the Court would take the extraordinary step of making the orders. It was submitted that the evidence went no further than saying that, to get the best out of the testing in question, it was recommended that there be no alcohol within the preceding 24 hours and no illegal drugs within the preceding week; and that was not enough.

Decision of primary judge 22 The primary judge referred to the evidence and the submissions, and continued: The orders contemplated by the defendant are really not coercive in nature in my view, although I accept that minds may differ. This all boils down to a question of fact and degree. If these orders are granted it is a matter then for the plaintiff to decide one way or the other as to what he will do. If he decides not to co-operate, well then there are certain consequences such as a stay of these proceedings. It effectively is in the hands of the plaintiff. There is a degree of "invasion", if I can use that terminology, when one considers what is contemplated here. But I would not go so far as to find that it is a gross invasion of the personal liberty of the plaintiff. Again it comes back to a question of fact and degree. It all comes back to what the plaintiff intends to do as far as the future of his case is concerned. As far as the necessity of these tests is concerned, I consider that there is ample material before the court to indicate that indeed those tests are necessary. In particular, to test the veracity of the plaintiff's contentions and matters of that kind. Causation as I indicated earlier looms very large in this case. So I consider that the facts in this case are easily distinguishable from the facts in Fernando . I do not consider the facts in this case go to the extent of a development of a situation where this is effectively a matter that trespasses upon the human rights of the plaintiff as suggested by Ms Goodchild. As far as the issue of the hair sample is concerned, and the possibility that there could be some unreliability of such a test, that is part and parcel of what a trial court could consider when it comes to the assessment of such evidence, if indeed it is educed at trial. But that matter in my view is not of itself determinative of the outcome of the relief sought in this notice of motion. True it is the rule itself does not indicate any particular power for the court to order blood sampling and matters of that kind. But I consider that the rule is broad enough to encompass the situation that we have here by virtue of what is set forth in sub rule (2). If I am wrong in that, it is clear to me that that is indeed a necessary implication which clearly arises from the tenor of the rule and the scope of the rule. It is incumbent upon this court, and indeed all courts, to ensure that a fair trial is held. And fairness is not a one sided issue. This is a significant claim brought by this plaintiff. If the plaintiff is successful in relation to the issues which have been raised, then he may well receive significant damages. The defendant is entitled to defend the claim and employ all reasonable avenues to advance its case by way of a defence. If I were to accede to the contentions advanced by the plaintiff, that would clearly create an injustice to the defendant. The defendant would be deprived of it's forensic rights to fairly test the evidence of the plaintiff. Again this comes back eventually to a decision which will remain with the plaintiff at the end of the day when it comes to the degree of co-operation required. For those reasons I do find that it is within the power of this court to accede to the orders sought in the notice of motion and I propose to do so. I see no basis for acceding to the alternative orders sought.

Issues on the application 23 The applicant seeks to rely on the following grounds of appeal: 1. The trial judge failed to properly consider the jurisdictional limits on the District Court before he determined the content and scope of the powers conferred by Part 23 Rule 1 of the Uniform Civil Procedure Rules 2005. 2. The orders made by the trial judge exceeded the jurisdictional limits of the District Court. 3. The trial judge erred in finding that the express terms of Part 23 Rule 1 of the Uniform Civil Procedure Rules 2005 conferred on the District Court an implied power to grant the orders sought in the notice of motion 4. The trial judge erred in making the orders sought by the 1 st respondent as the orders were in excess of what was sought by Dr Pauline Langeluddecke as being necessary to validate the neuropsychological assessment of the claimant and was for a collateral purpose of attacking the credit of the claimant. 5. The trial judge erred in distinguishing the principles of law established by Fernando v Commissioner of Police (36 NSWLR 567), on the basis that the subject proceedings were civil proceedings and therefore subject to the obligations of the Civil Procedure Act (Page 10-11 Judgement of Robison J 27 th June 2008). 6. The trial judge erred in determining that the orders sought in the first defendants notice of motion were 'reasonable' for the purposes of the requirements of sub rule (2) of Part 23 Rule 1 of the Uniform Civil Procedure Rules 2005. 7. The trial judge erred in finding the orders sought in the first defendant's notice of motion were not coercive in nature (page 1 Judgement of Robison J 27 th June 2008). 8. The trial judge failed to find, that in the material available to the court, the orders for testing sought by the first defendant were unnecessary for the proper and fair conduct of the proceedings. 24 I will consider in turn: (1) whether the orders were within power (grounds 1-3). (2) whether the orders infringed the applicant's privilege against self-incrimination; (3) whether there were other errors by the primary judge (grounds 4-8); 25 Before proceeding to do so, I should say that, in my opinion, the application does raise matters of substance and of some general significance, and leave to appeal should be granted.

Were the orders within power? 26 Ms Norton SC for the applicant submitted that the power in r 23.4(1) extended only to making orders for submission to medical examination, and did not extend to making orders requiring the applicant to submit to tests, particularly tests that were invasive and infringed the applicants right to privacy and privilege against self-incrimination. Ms Norton pointed out that r 23.4(1) does not refer to testing, and that testing is dealt with separately in Division 2 of Pt 23; and Ms Norton submitted that that Division would be superfluous if medical examination included testing. 27 Ms Norton relied particularly on Fernando. That case concerned s 353A(2) of the Crimes Act 1900, which in certain circumstances authorised "a legally qualified medical practitioner" to make "such an examination" of a person in custody as was reasonable in order to ascertain certain facts. The majority of the Court of Appeal held that it did not authorise the drawing of blood for testing, but merely permitted an external examination involving examination by eye and by touch. 28 In that case Priestley JA (at 572) said: More generally, the taking of blood from the person whilst in the course of being examined by a medical practitioner strikes me as being something incidental to the examination, or in aid of the examination, but not part of the examination itself. This seems to me to be a real distinction, although one unlikely to be of any significance in everyday medical practice, because in such practice there is no particular point in drawing it. The need to do so arises however when considering the meaning of the statutory authorisations in s 353A, in particular that in subs (2). 29 The other member of the majority, Powell JA, referred to the privilege against self-incrimination, and the need for a clear manifestation of legislative intention to interfere with fundamental rights, privileges and immunities. 30 In my opinion, as submitted by Ms Heath for the respondents, the rules in question should be construed in the light of the generally understood circumstance that medical examinations now often involve the co-operation of a number of different experts; and often include examination by medical experts, who are pathologists, of samples that are routinely taken, not by medical practitioners, but by employees. 31 Under r 23.1, medical examination is defined as including any examination by a medical expert; and in my opinion that would include examination by an expert pathologist of samples taken from a party, even though the pathologist does not directly examine the party. What is authorised by r 23.4 is "orders for medical examination"; and in my opinion that extends to orders directed to and appropriate for the bringing about of medical examination, including the kind of medical examination routinely carried out by pathologists. Such orders could extend at least to routine procedures for obtaining samples that are necessary for that kind of medical examination. 32 In my opinion, that interpretation does not make Div 2 of Pt 23 superfluous: that Division explicitly authorises testing during a specified period at a specified place, which might possibly be considered outside Div 1 (cf Herbert v O'Neill (Supreme Court of New South Wales, Sharpe J, 30 November 1979, unreported)). The express exclusion of a specific category of tests from the definition of "medical examination" in r 23.1 suggests, if anything, that otherwise tests may be included in "medical examination". 33 The wording in Pt 23 is significantly different from that considered in Fernando, which only authorised a medical practitioner to make an examination of a person. It therefore did not in terms authorise a medical examination of a sample taken from a person, or procedures enabling that to happen. 34 We were referred to a number of authorities considering whether certain procedures should or should not be ordered in relation to medical examinations of a plaintiff. In my opinion, those authorities went to exercise of discretion, not to power. 35 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. 36 Accordingly, subject to questions concerning privilege against self-incrimination, in my opinion the orders were within power.

Privilege against self-incrimination 37 This privilege was not explicitly relied on before the primary judge, although there was reference to fundamental rights, privileges and freedoms; and the case of Fernando was relied on below, in which Powell JA discussed these fundamental rights, privileges and freedom in association with a discussion of the privilege against self-incrimination. 38 Ms Norton submitted that the orders as made excluded or disregarded the applicant's right to refuse to give samples on the basis of his privilege against self-incrimination; and that even if the form of order were treated as giving the applicant a choice whether to give samples or not to give samples, the alternative of a stay of proceedings would still amount to an effective compulsion on him to incriminate himself. Even if the applicant abstained from taking drugs for a relevant period, he faced the risk of incrimination through a risk of false positives, especially from hair samples. 39 Ms Heath submitted that the applicant could avoid any risk of self-incrimination by abstaining from drug-taking for a period; that any risk of prosecution was remote; and that false positives from hair samples would at best be very weak evidence. In any event, she submitted, the orders did not compel the applicant to give samples: he was given a choice. 40 It has been held that the privilege against self-incrimination is a fundamental right or privilege, that can be abridged by statute or waived, but otherwise is without real exception: Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 at 12. The importance of the privilege is illustrated by the circumstance that no inference can be drawn against the person because the person has exercised the right to silence; and it is only in extremely limited circumstances that any inference can be drawn against an accused from an accused's failure to give evidence at a criminal trial: Azzopardi v the Queen [2001] HCA 25; (2001) 205 CLR 50. Were it otherwise, the privilege would be greatly attenuated. 41 Similarly, in my opinion, even if it were the case that the orders as framed in effect simply gave the applicant a choice whether to submit to testing or have his action stayed, and if it were the case that to submit to testing could incriminate himself, the practical compulsion of facing the detriment of having his action stayed would in my opinion be an unacceptable attenuation of the privilege. 42 In any event, in my opinion, order 4 made by the primary judge is a direct order, not something giving the applicant alternatives. Order 5 does contemplate that order 4 may be breached, but r 23.9 preserves the possibility of punishment for contempt; and although punishment for contempt is unlikely in the extreme, I do not think a direct order like order 4 can be treated as simply giving alternatives. 43 A question arises whether there is any reasonable possibility that the applicant could, at the relevant time, make a valid claim for privilege against self-incrimination. At most the testing might give some evidence of private drug use, and it could be said that any prosecution would be unlikely in the extreme. Although the test under s 128 of the Evidence Act 1995 refers to evidence that may tend to prove that a witness has committed a criminal offence, the relevant test here is the test at common law, which is that disclosure would have a tendency to expose a person to conviction for a crime. What that involves is a real and appreciable risk of prosecution and conviction, as opposed to a remote or insubstantial risk: In Re Westinghouse Uranium Contract [1978] AC 547 at 574 per Lord Denning. Other expressions in that case are that there be a risk that is more than a fanciful possibility (Roskill LJ at 579), or a recognisable risk that cannot be dismissed as tenuous or illusory or so improbable as to be virtually without substance (Shaw LJ at 581). All these general expressions found some support in the House of Lords' decision in that case: Lord Wilberforce at 612, and Viscount Dilhorne at 628-9. 44 In my opinion, it is not possible to say in advance whether an objection taken by the applicant at the time contemplated by the order would or would not be justified on the basis of privilege against self-incrimination. The problem is that the order takes effect whether or not it would be justified, so that even if non-compliance is on the basis of a justified claim of privilege against self-incrimination, the order would be breached and the stay of proceedings would take effect. There would remain the possibility of applying to have the stay of proceedings lifted, on the ground that non-compliance was justified; but that possibility does not eliminate the coercive effect of the order. In my opinion, the order as made does offend against the privilege against self-incrimination, unless that privilege has been waived: cf Reid. 45 The question whether the privilege has been waived raises questions of the kind considered in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 in relation to legal professional privilege; and cf Council of NSW Bar Association v Archer [2008] NSWCA 164 at [45]-[50]. That is, for waiver it would be necessary to find that the applicant's conduct in insisting on this privilege would be inconsistent with his maintaining his claim in which he alleges deficiencies in his present cognitive ability. 46 The possible inconsistency would arise in this case from the applicant denying to the respondents a proper opportunity to have his cognitive capacity tested, while continuing to press against the respondents a claim concerning the level of his cognitive capacity. As noted in Archer, a finding of inconsistency of that kind requires more than a general assessment of the fairness of the situation. In the present case, it would in my opinion require close consideration, on adequate evidence, of alleged deficiencies of neuropsychological testing without the assurance given by the drug testing. The hearsay evidence before the primary judge was not, in my opinion, sufficient for this. 47 This point was not taken in that way before the primary judge, and had it been taken, no doubt more evidence could have been called. On the basis of Suttor v Gundowda Pty Limited [1950] HCA 35; (1950) 81 CLR 418, I would not allow this appeal on that basis alone.

Were there other errors? 48 Ground 4 included a ground that the orders were obtained for the collateral purpose of attacking the applicant's credit. As argued on appeal, the focus was on the statement of the primary judge, made in support of making the order, that the tests were needed to test the veracity of the plaintiff's contentions, and matters of that kind, coupled with the comment that causation looms very large in this case. 49 That statement could possibly be given a narrow construction, as directed only to the veracity of the plaintiff's contentions insofar as they affected the reliability of the testing being undertaken by the respondents' medical expert; but it does not appear to me to be so limited. 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. Accordingly, in my opinion this statement does indicate error. 50 Ground 4 also included the ground that the orders were in excess of what had actually been sought by the relevant medical expert, namely that the applicant should be informed in writing that he should avoid using alcohol at least 24 hours before and illicit drugs for at least one week before the testing. In submissions before us this was expanded to the contention that the evidence for the necessity of the testing was unsatisfactory hearsay evidence, so that the evidence as a whole did not justify the orders that were made, infringing the applicant's fundamental rights, privileges and immunities. 51 In my opinion, there is force in that submission also, given the form of the orders as they were made. As mentioned earlier, the orders do present the applicant with the stark choice of submitting to something which is or may be an invasion of fundamental rights, privileges and immunities, or of having his action stayed. In my view, a remedy of that degree requires more cogent evidence than was available to the primary judge in this case. 52 Another particular error identified was the expression of the primary judge that the orders were "really not coercive in nature in my view, although I accept that minds may differ". It was submitted for the applicant that, for reasons of the kind I have already discussed, the orders were in fact coercive. 53 Again, in my opinion there is substance in this submission, in that it suggests that the primary judge did not have sufficient regard to the weight of the orders being made, in assessing whether the evidence was sufficient to justify them. 54 Having regard to these three considerations, in my opinion a case is made out that the judge's reasons indicate that his discretion miscarried, in ways that materially affected the result. This Court should either send the matter back for a further hearing, or decide the respondents' application itself. In my opinion, the latter course is preferable.

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. **********

29/03/2010 - corrections to incorrect cross-referencing. At [61] change the reference to par [34] to [35] At [66] change the reference to par [10] to [11] At [66] change the reference to par [11] to [12] At [67] change the reference to par [19] to [20] At [70] change the reference to par [18] to [19] At [61] change the reference to par [30] to [31] At [65] change the reference to par [56] to [58] At [65] change the reference to par [54] to [55] - Paragraph(s) [61], [65], [66], [67], [70]

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