Federal Court of Australia

Hastwell v Kott Gunning [2021] FCAFC 70

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The applicant, Mr Hastwell, is a solicitor, formerly employed by the respondent firm of solicitors, Kott Gunning. The circumstances of his employment and the alleged consequences of these circumstances have given rise to a substantial body of litigation, most recently Hastwell v Kott Gunning (No 5) [2020] FCA 621 from which Mr Hastwell appeals or seeks leave to appeal.

2    Mr Hastwell contends that he was subjected to bullying and other forms of mistreatment whilst employed with Kott Gunning, primarily because of his sexual preference. He contends that the treatment he received was in breach of various provisions of the Sex Discrimination Act 1984 (Cth) (SDA) and the Disability Discrimination Act 1992 (Cth) (DDA). His attempts to pursue relief in the Human Rights Commission were unsuccessful and he then applied to this Court pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). He contends, and it is for present purposes accepted, that he suffers mental disability in the form of depression and anxiety. The extent to which such conditions may have persisted prior to Mr Hastwell’s employment at Kott Gunning, and whether any exacerbation was caused by Kott Gunning are issues of significant disagreement between the parties.

3    Some of the complaints, Kott Gunning says, are in relation to behaviour which was completely innocuous and could not possibly be regarded as unacceptable on any assessment. Kott Gunning has not expressly denied that such conduct occurred. Other elements of the conduct, as asserted, are particularly unusual and extreme.

4    In the course of privileged exchanges with Mr Hastwell, Kott Gunning became aware of a diagnosis by a Sydney psychiatrist (Dr Parmegiani) of paranoia and delusional disorder on the part of Mr Hastwell. Mr Hastwell takes great issue with this diagnosis and specifically the use of that information by Kott Gunning to support its application for orders that Mr Hastwell be examined by a psychiatrist of Kott Gunning’s choosing. Mr Hastwell has trenchantly resisted being required to submit to such form of examination by any psychiatrist particularly with regard to a diagnosis of potential paranoia such that the reliability or credibility of his contentions might be questioned.

5    Following persistent refusal for many months, the primary judge in Hastwell (No 5) permanently stayed Mr Hastwell’s claim for damages against Kott Gunning on the basis of his refusal to be so examined.

6    In this application for leave to appeal from the primary judge’s decision in Hastwell (No 5), Mr Hastwell raises the same arguments as raised before his Honour and one additional argument regarding which there is an application to amend the draft notice of appeal and adduce fresh evidence on appeal. The new argument is ground 9 in the draft notice of appeal of 5 October 2020. Although Kott Gunning does not object to Mr Hastwell relying on the amended draft notice, it opposes the application for leave to adduce fresh evidence in support of it, and contends that leave to appeal on ground 9 should be refused in any event because the issue was not before the primary judge in Hastwell (No 5) and was conclusively determined in Hastwell v Kott Gunning (No 3) [2019] FCA 1641. The application to adduce fresh evidence will be dealt with together with consideration of ground 9 and, as will become clear, leave to appeal on all grounds is required in any event.

7    It will be convenient to examine the primary judge’s reasons dealing with each particular argument raised by Mr Hastwell. Much of the argument advanced for Mr Hastwell in the 48 pages of notes that he read to the Court on the application is highly repetitive, but there are two central themes to his complaints.

8    The first theme, which is enlivened in a number of different ways, is that the Court has no power in relation to a complaint under the AHRC Act to order an applicant to be psychiatrically examined.

9    The other complaint is that the material that Kott Gunning acquired revealing that another psychiatrist (Dr Parmegiani) had diagnosed Mr Hastwell with paranoia and delusional disorder, was improperly obtained by Kott Gunning and therefore it was impermissibly relied upon by the primary judge.

10    These two themes take arguments in many forms, and are addressed variously in the 14 proposed grounds of appeal that will each be dealt with in turn.

11    This case is a stark illustration of the difficulties that people with serious mental health problems face in the litigation system. There is often as here, a complete lack of trust between the parties. The difficulties faced by such a person in the commencement and pursuit of a proceeding are only, and inevitably, compounded as the proceeding continues. The sympathy that the Court inevitably feels for such a person however, does not enable the Court to ignore the rights of the person the subject of an applicant’s claim. Nor can the Court ignore the reality that limited resources are available and must be applied to ensure that all applicants may have their cases considered. It is to be hoped that an improved, more appropriate, and effective system could be developed to enable resolution of such cases.

12    In this proceeding, the primary judge has treated the arguments advanced by Mr Hastwell at each stage of the proceedings with great care, sympathy and patience. There is no doubt that the conclusions reached by the primary judge in Hastwell (No 5) were correct for the reasons that his Honour gave and this application for leave to appeal must accordingly be refused.

IS LEAVE TO APPEAL REQUIRED?

13    Mr Hastwell contends that he does not require leave to appeal for various reasons. First, he says that one of the orders made in Hastwell (No 5) was an order for a permanent stay of proceedings if Mr Hastwell did not provide his consent to being medically examined, specifically by Dr Tony Mander, a psychiatrist nominated by Kott Gunning. Because order 1 of the orders in Hastwell (No 5) ordered a permanent stay of proceedings, Mr Hastwell contends he does not need leave as the order was not interlocutory in nature. He refers to s 24 of the Federal Court of Australia Act 1976 (Cth) which relevantly provides as follows:

24    Appellate jurisdiction

(1)    Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:

(a)    appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court;

…

(1A)    An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

(1B)    Subsection (1A) is subject to subsection (1C).

(1C)    Leave to appeal under subsection (1A) is not required for an appeal from a judgment referred to in subsection (1) that is an interlocutory judgment:

(a)    affecting the liberty of an individual; or

(b)    in proceedings relating to contempt of the Court or any other court.

(1D)    The following are taken to be interlocutory judgments for the purposes of subsections (1A) and (1C):

(a)    a judgment by consent;

(b)    a decision granting or refusing summary judgment under section 31A;

(c)    an order made by the Court under section 37AF, 37AS or 37AT;

(ca)    a judgment of the Federal Circuit Court under section 17A of the Federal Circuit Court of Australia Act 1999;

(d)    an order made by the Federal Circuit Court under section 88F, 88U or 88V of the Federal Circuit Court of Australia Act 1999.

…

14    In relation to the examples indicated under s 24(1D) Mr Hastwell contends that none of those examples is applicable to the orders concerned. He says that because the order to permanently stay the proceedings is a conclusive adverse determination which would bring finality to the proceedings if left unchallenged by way of an appeal, the proceedings are not interlocutory.

15    Secondly, Mr Hastwell says that if the judgment in Hastwell (No 5) is considered to be interlocutory in nature, it affects the liberty of an individual and, according to s 24(1C)(a) of the Federal Court Act leave to appeal is not required. This is said to be for two reasons:

(a)    the order to permanently stay proceedings because Mr Hastwell did not consent to being medically examined by Dr Mander affects his liberty in that it indirectly compels him to be medically examined in the absence of consent; and

(b)    it is in the public interest to challenge the judgment on the basis that it affects the liberty of claimants generally who bring proceedings under the AHRC Act if they do not consent to being medically examined at the request of an employer, thereby affecting individual human rights and the liberty of claimants generally.

16    In making these submissions, Mr Hastwell has attempted to distinguish the present case from Ryan J’s decision in Talacko v Talacko (2010) 183 FCR 297 where his Honour refused an application for leave to appeal from an order restraining a person from travelling outside Australia and said the following (at [41]-[43]):

41    In my view the reference in s 24(1C)(a) of the Federal Court Act to “liberty of the individual” is synonymous with “liberty of the subject”. Sub-section (1C) of the Federal Court Act was inserted by s 3 and Schedule 2 of the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth), the Bill for which was explained by the Attorney-General in his Second Reading speech as framed so that;

“Uncertainty surrounding appeal rights in relation to interlocutory judgments will be removed, so that the court’s time will no longer be spent unnecessarily hearing appeals from certain interlocutory decisions”.

That explanation supports a restrictive interpretation of the exception from the requirement to seek leave to appeal in respect of an interlocutory judgment affecting the liberty of an individual. An early legislative ancestor of the new provision seems to be s 1(1)(b) of the Supreme Court of Judicature (Procedure) Act 1894 (Imp) which provided that:

No appeal shall lie …

(b)    without the leave of the judge or the Court of appeal from any interlocutory order or interlocutory judgment made or given by a judge, except in the following cases …

(i)    when the liberty of the subject or the custody of infants is concerned.

42    In Ryan v Attorney-General [1998] 3 VR 670, Ormiston JA expressed the view, at 672, that “no niggardly construction should be given to the expression ‘liberty of the subject’ a concept nurtured and protected by the common law for many centuries.” His Honour’s observations were directed at s 17A(4) of the Supreme Court Act 1986 (Vic), which is to the same effect as s 1(1)(b) of the Judicature Act just mentioned, and despite taking a broader view of it than the other members of the Court of Appeal, his Honour was not prepared to give the expression a reading as expansive as that for which the debtor contends in the present case. His Honour said, at 672:

But where the order from which the appeal is brought does affect the liberty of the subject, whether by direct incarceration or otherwise or where the order authorises the deprivation of a person’s liberty then, prima facie, the exception should apply to permit appeal without leave. These views seem to me consistent with those expressed by Murphy J in Marriner v Smorgon (a judgment concurred in for these purposes by Gobbo J and myself). That case related to a warrant whose effect had expired inasmuch as it had been executed and the appellant released from custody, so that Murphy J. was able to say that he was “not imprisoned, nor is he under threat of imprisonment, by reason of the warrant”: at 503. Moreover, as was said in the same judgment at 505, the expression must “be construed to encompass only cases where the personal liberty of a natural person is to be affected by the outcome of the appeal”.

43    I consider that a similar approach to the construction of the corresponding new provision in the Federal Court Act compels the conclusion that the exception from the need to obtain leave to appeal is confined to orders which subject an individual to direct incarceration or other total deprivation of his or her physical liberty.

(Emphasis added.)

17    Mr Hastwell argues that compelling someone to being medically examined, even indirectly, would satisfy the test posed by Ryan J in that it would be tantamount to a deprivation of liberty. Alternatively, Mr Hastwell argues that the test postulated by Ryan J is too narrow and that compelling individuals to be medically examined at the request of a respondent in the absence of statutory authority to do so would satisfy the test under s 24(1C)(a) as it affects an applicant’s liberty or the liberty of an individual who brings a claim under the AHRC Act. The primary judge’s interpretation, Mr Hastwell says, is too restrictive and would not cover a myriad of factual scenarios like the present. Mr Hastwell argues that a more measured approach to the phrase “affecting liberty” would be to consider infringement of human rights generally.

18    There is no doubt that Mr Hastwell requires leave to appeal. The order permanently staying the proceeding was interlocutory on any of the established tests. It did not decide the merits of the underlying dispute in any way. Although the order had the practical effect of ending the proceeding, at least pro tem, it did not have the legal effect of finally determining the rights of the parties in a principal cause between them: Hall v Nominal Defendant (1966) 117 CLR 423 per Windeyer J (at 443). That can be tested by reason of the fact that, in theory at least, it remains open to Mr Hastwell to apply to set the order aside and/or bring a fresh complaint under the AHRC Act based on the same facts. An order staying a proceeding because it is an abuse of process has been held to be interlocutory, unless the abuse of process lies in an attempt to litigate an issue which is res judicata: Brookfield v Davey Products Pty Ltd [2001] FCA 104 per Mansfield J (at [27]).

19    Accordingly, the primary judge’s decision was interlocutory in nature such that leave to appeal is required unless one of the exceptions in s 24(1C) applies.

20    As to whether the exception in s 24(1C)(a) of the Federal Court Act applies, the order was neither an order compelling Mr Hastwell to undergo the psychiatric examination, nor an order subjecting him to “direct incarceration or other total deprivation of his or her physical liberty”. He was not required to undergo the examination, but if he did not agree to undergo the examination, he could not continue the proceeding and he could not adduce his own medical evidence. The approach taken and the expression used in Talacko has been followed in numerous cases, including Peng Gao v Fair Work Ombudsman [2013] FCA 754 per Bromberg J (at [18]), SZSNN v Minister for Immigration and Border Protection [2013] FCA 1218; (2013) 217 FCR 171 per Perry J (at [26]), SZSXM v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1251 per Wigney J (at [17]) and SZSSJ v Minister for Home Affairs [2019] FCA 1149 per Katzmann J (at [28]).

21    Mr Hastwell relied on Perry J’s decision in SZSNN (at [27]) where her Honour questioned, without expressing a concluded view, whether the test in Talacko was too restrictive in the context of an appeal from a summary dismissal by the Federal Circuit Court of Australia of a judicial review application where the applicant was held in immigration detention. He similarly relies on Sami v Commonwealth [2018] FCA 1991 in which White J considered (at [37]) that the phrase “affecting the liberty of an individual” was probably not intended to be construed as strictly concerning the practical impact of a judgment but rather should include its character in an abstract sense as well. White J’s decision was also concerned with an applicant held in immigration detention.

22    Even on a less restrictive test than the one applied in Talacko, it is difficult to see how the primary judge’s order affects Mr Hastwell’s liberty. The order does not seek to compel or restrain Mr Hastwell from doing any act or thing. Rather it prevents the continuation of proceedings in circumstances where the Court is not satisfied that there can be a fair determination of the issues in dispute if Mr Hastwell does not submit to being medically examined by Kott Gunning’s nominated psychiatrist.

23    Accordingly, leave to appeal is required.

24    In order for the Court to grant leave to appeal Mr Hastwell must satisfy the Court of the cumulative test set out in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, namely:

(a)    whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

(b)    whether substantial injustice would result if leave were refused supposing the decision were wrong.

(see also Bienstein v Bienstein [2003] HCA 7 and Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [26]).

25    The two limbs are not unrelated and as noted by Burchett J in Sharp v Deputy Commissioner of Taxation (Cth) [1988] FCA 76; (1988) 19 ATR 908 (at 910) the “sufficiency of the doubt in respect of a decision and the question of substantial injustice should not be isolated in separate compartments”.

26    We also accept the concession made by Kott Gunning that consideration of whether the decision was attended by sufficient doubt so as to justify the grant of leave to appeal must be assessed in the context that the order effectively brought the proceeding to an end: Tyne v UBS AG [2016] FCA 241 per Edelman J (at [31]-[34]). In this regard, the observations of French J (with whom Beaumont and Finkelstein JJ agreed) in Johnson Tiles Pty v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 (at [43]) are instructive:

… Interlocutory orders cover a spectrum from those concerned solely with the mechanics of case management and pre-trial preparation to those which may, for one reason or another, have a significant impact upon the scope and outcome of the proceedings. If the order, the subject of the application for leave to appeal, is concerned with the mechanics of the pre-trial process then the scales are likely to be weighted against the grant of leave. However if while interlocutory in legal effect it has the practical operation of finally determining the rights of the parties “a prima facie case exists for granting leave to appeal” – Ex parte Bucknell (1936) 56 CLR 221 at 225; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400; Minogue v Williams [2000] FCA 125 at [18]. If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory. However leave will usually be granted in such a case if there is any doubt about the decision at first instance – Little v Victoria [1998] 4 VR 596 at 598-600 and 601 (Callaway JA, Buchanan JA agreeing).

(see also Samsung Electronics at [31] and Re CSR Ltd [2002] FCAFC 34; (2010) 183 FCR 358 at [5])

27    In accordance with these authorities the Court reserved its decision on the application for leave to appeal pending a consideration of the merits of Mr Hastwell’s challenge to the primary judge’s decision after hearing full argument on all of the proposed appeal grounds.

28    For the reasons that follow, the decision of the primary judge is not attended by sufficient doubt to warrant it being reconsidered and no substantial injustice has been sustained such that leave to appeal must be refused.

THE PROPOSED GROUNDS OF APPEAL

29    The proposed grounds of appeal upon which Mr Hastwell relies cannot be sustained.

30    The grounds of appeal are lengthy in their content and contain substantial portions of the argument that Mr Hastwell also relied upon in his submissions. In this regard, both Mr Hastwell’s written submission on the question of leave and his separate written submissions on the merits of the appeal address the grounds of appeal in detail, albeit that the arguments differ in their formulation. While we have given close consideration to all of the material, we have focussed on Mr Hastwell’s primary submissions on the appeal grounds (filed on 5 October 2020), and his oral submissions. Across both sets of submissions Mr Hastwell’s arguments mirror much of the form and content of the appeal grounds and particulars themselves.

Proposed ground 1

31    Proposed ground 1 is as follows:

Ground 1 – Jurisdictional error

1.    It is contended that [the primary judge] made a jurisdictional error of law by ordering a stay of proceedings on the basis that [Mr Hastwell] did not provide consent to attend a medical examination at the request of [Kott Gunning] and by ordering a stay of proceedings [the primary judge] made a decision outside the limits of his functions and powers conferred on him for the following reasons:

(a) His Honour has erred by failing to give proper construction to the [AHRC Act] for which the claim for harassment and discrimination has been brought in that by ordering a stay of proceedings for a claimant not consenting to be medically examined at the request of a respondent would circumvent the [AHRC Act] because the subject matter, scope and purpose of the [AHRC Act] is for the protection of human rights which would include providing consent to a medical examination;

(b) In the absence of express statutory authority giving [Kott Gunning] the power to require a claimant to be medically examined under either the [AHRC Act], the [SDA] and/or the [DDA] by ordering a stay of proceedings on the basis that a claimant does not provide consent to a medical examination at the request of a respondent, would infringe the personal liberty or human right of the claimant and therefore is acting ultra vires because interference of the liberty of an individual would require specific statutory authority;

(c) Ordering a stay of proceedings on the basis that a claimant under the [AHRC Act] did not provide consent to being medically examined, an event which would affect personal liberty, would be in contravention to the doctrine of separation of powers. If parliament has sought not to legislate giving [Kott Gunning] the power to require a claimant to be medically examined and without specific authority granted to the Federal Court, ordering a stay for withholding consent to an event which would infringe the personal liberty of an individual (an act which would require an act of parliament) would be acting ultra vires.

32    In support of ground 1, Mr Hastwell makes three separate submissions which generally mirror the three particulars to the ground of appeal and were supplemented by further authorities at the hearing.

33    The first submission is that the primary judge failed to give a proper construction to the AHRC Act, because an order permanently staying proceedings absent Mr Hastwell’s consent to being medically examined is contrary to the subject matter, scope and purpose of that Act. He contends that it is implied under the AHRC Act that consent would be required insofar as Kott Gunning requests that he be medically examined. Mr Hastwell relies for this proposition on the reasons of Mason CJ and Gaudron J in Waters v Public Transport Corp [1991] HCA 49; (1992) 173 CLR 349 where their Honours said in the context of the Equal Opportunity Act 1984 (Vic) (at 359):

… the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, “to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status”. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s. 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. …

(Citations omitted.)

34    Mr Hastwell also raises the High Court’s decision in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Mason J (at 39) for the proposition that the primary judge was required to give proper consideration, by way of implication, to the subject matter and scope of the AHRC Act in the exercise of his Honour’s functions and power. Although Peko-Wallsend was a decision concerned with the character of administrative decision-making, it is not contentious that the primary judge was required to properly construe the AHRC Act.

35    The problem that Mr Hastwell faces however, is that the primary judge considered this very argument, including Mr Hastwell’s reliance on Waters. It cannot be said that his Honour failed to consider the scope or subject matter of the AHRC Act, nor with respect, can his Honour’s conclusions on this issue be faulted. His Honour said relevantly (at [46]-[47] and [53]-[54]):

46    Mr Hastwell submitted that the order sought would be an infringement of a person’s personal liberty and ‘also their right to be heard’ and so was contrary to the purpose and intent of the Australian Human Rights Commission Act 1986 (Cth). But he did not point to any provisions of that Act which expressly or by implication prohibit the court from staying its own proceeding if an applicant does not submit to a medical examination. The long title of the Act is ‘An Act to establish the Australian Human Rights Commission, to make provision in relation to human rights and in relation to equal opportunity in employment, and for related purposes’. So it may be accepted that the Act has a general purpose of promoting the recognition of human rights in Australia: see also s 10A. Human rights are defined broadly: see the definition in s 3(1) as modified by s 3(4). However the Act does not give statutory force to any right to personal liberty. It creates and confers functions on the Australian Human Rights Commission and other bodies. It authorises individuals to make complaints to the Commission, but only on the basis of unlawful discrimination, being discrimination made unlawful by other legislation: see s 46P(1) and the definition of ‘unlawful discrimination’ in s 3(1). It is not possible to discern any intention in the Act to limit the powers of superior courts to control their own proceedings in the way that is contemplated in the orders proposed here.

47    Mr Hastwell relied on the principle that the particular provisions of an Act must be read in the light of its statutory purpose, and this is particularly significant in the case of legislation which protects or enforces human rights: see Waters v Public Transport Corporation (1991) 173 CLR 349 at 359. But unless particular provisions needing to be construed are identified, that principle has no application. The only specific provisions Mr Hastwell identified here were s 3 of the [SDA] and s 3 of the [DDA], each of which says that an object of the Act is to eliminate, as far as possible, discrimination of the kind that is proscribed by the Act. But those are broad statements from which it is not possible to discern any intention to modify the Federal Court’s powers and procedures. And the submission begs the question of whether Kott Gunning have, in fact, engaged in discrimination of those kinds.

…

53    According to a further submission by Mr Hastwell, for him to ‘have to undergo a medical examination by the very people who have been responsible for the bullying, harassment and discrimination would be unjust and damaging’. That, he said, would ‘not seek to prevent human rights abuses but encourage them’. But once again, that begs the question. Mr Hastwell is alleging that Kott Gunning engaged in bullying, harassment and discrimination against him, but is yet to prove his case. And the fundamental common law right of a defendant to defend itself in litigation applies in any litigation, whether the case involves a private law or a public law claim: R (Y) v Croydon London Borough Council [2016] 1 WLR 2895 at 2901-2902.

54    Mr Hastwell submitted that effectively barring a claimant from pursuing a bona fide human rights claim would be contrary to the intent and purpose of human rights legislation, but for reasons already explained, in the absence of an express or clearly implied legislative intention to exclude the court’s discretion to order a stay, the legislation will not be read so as to exclude the power to make an order of the kind sought here. Mr Hastwell submitted that it would be ‘fundamentally unjust for this matter not to go to trial and granting a stay would discourage people from bringing legitimate claims for discrimination’. But it would be fundamentally unjust for the matter to go to trial without giving the respondent the ability to adduce evidence on a matter relevant to its defence. It is no answer to say that the need for an applicant [to] prove his case, and the court’s obligation to give a respondent a reasonable opportunity to disprove the case, might discourage applicants in future.

36    Mr Hastwell’s second submission on ground 1 is that the Court does not have the power to order a stay in the absence of specific statutory authority to do so in any of the SDA, the DDA or the AHRC Act. He says that unlike workers’ compensation legislation, motor vehicle accident third party legislation and other statutory-based schemes, there is no legislative provision which gives a respondent the power to require an applicant to be medically examined. At the hearing, Mr Hastwell made mention of a number of these legislative provisions as follows:

(a)    Safety Rehabilitation and Compensation Act 1988 (Cth) ss 57 and 57(2);

(b)    Military Rehabilitation and Compensation Act 2004 (Cth) ss 328 and 329;

(c)    Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 66 and 66(2);

(d)    Health Practitioner Regulation National Law 2009 (NSW) ss 145E, 152B, 152B(4), 152C and 152C(4);

(e)    National Disability Insurance Scheme Act 2013 (Cth) ss 26 and 26(3);

(f)    Veterans’ Entitlement Act 1986 (Cth) various sections;

(g)    Motor Vehicle (Third Party Insurance) Act 1943 (WA) ss 30 and 35; and

(h)    Workers Compensation and Injury Management Act 1981 (WA) ss 64, 65, 66 and 72A.

37    While it is true that each of these legislative provisions does provide or relate, in some form or another, to the requirement to undergo medical examinations in various contexts, none of these provisions is directed at, or concerned with the powers of courts in this regard. Rather, these provisions deal variously with the powers of “commissions”, “employees”, and “relevant authorities” in the case of the Safety Rehabilitation and Compensation Act which is defined in s 4 of that Act as either a “licensee” or “Comcare”. These examples are consequently of little assistance to Mr Hastwell in trying to demonstrate that this Court lacks the power, absent specific statutory authority, to order a stay where an applicant refuses to undergo a medical examination and the Court is unable to be satisfied that the matter can otherwise proceed to a just determination of the cause.

38    Again, the primary judge gave detailed consideration to the question of whether this Court had the power to order a stay in the circumstances and his Honour’s analysis is careful and detailed. It appears at [32]-[40] of the primary judgment and addresses the majority of the cases that Mr Hastwell sought to raise on this appeal:

Principles

32    Mr Hastwell relied heavily on what he submitted was an invasion of his fundamental rights if he were compelled to submit to a psychiatric examination. The common law accepts that a person has rights of control and self-determination in respect of his or her body which can only be altered with the consent of the person concerned: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 309-310 (McHugh J). Consistently with that, a direction requiring an interference with the liberty of an individual litigant has generally been viewed as requiring specific statutory authority. So, for example, in S v S [1972] AC 24 a majority of the House of Lords held that the High Court of England and Wales does not have an inherent jurisdiction to order a person of full age and capacity to undergo a blood test against their will. Similarly, it has been held that the Supreme Court of Western Australia does not have an inherent power to compel a person to undergo DNA testing: Furesh (as administrator of Intestate Estate of Slipcevich) v Schor [2013] WASCA 231; (2013) 45 WAR 546. In some jurisdictions, rules of court authorise the court to order a party to submit to a medical examination: for example O 28 r 1 of the Rules of the Supreme Court 1971 (WA); and Uniform Civil Procedure Rules 2005 (NSW) r 23.4. The Federal Court Rules 2011 (Cth) contain no provision of that kind.

33    I note at this point that since the examination proposed here is a psychiatric examination, it may be that it will not involve any physical touching of Mr Hastwell. Fundamental legal prohibitions on assault and trespass to the person therefore may not be relevant. However there was no evidence about what the examination would involve, and neither party relied on the particular character of the examination here. Even if the examination does not involve physical touching, it will inevitably involve some encroachment on Mr Hastwell’s privacy. I will proceed on the basis that the principles pertaining to a psychiatric examination are the same as for any medical examination.

34    Although the Federal Court does not have power to order a compulsory medical examination, there is a distinction between such an order and an order that an action be stayed unless an applicant submits to examination by a medical practitioner nominated by the respondent: see Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59; (2009) 230 FLR 336 at [79] (Basten JA); Furesh v Schor at [72] (Murphy JA); and Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374 at [127] (Collier J). In Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 at 72-73 Widgery LJ (agreeing with Lord Denning MR and Davies LJ) observed:

I can see the objections that would be raised if it were sought to give the court power to make a direct order for medical examination with, presumably, power to commit the plaintiff for contempt if he refused. But none of those objections, to my mind, arise where it is sought to give the plaintiff a right to elect between not going on with his action, or submitting himself to medical examination, especially where his refusal to be examined is based on no reason and will result in the defendants being unable to prepare their defence, and will thus result in the court being unable to do justice towards the defendants.

35    Nevertheless, it must be recognised that the practical effect of such an order may be to compel the applicant to submit to a medical examination, because the consequence of not doing so is that the action is stayed. It is, as Sachs LJ said in Lane v Willis [1972] 1 WLR 326 at 333, a ‘somewhat strong course’. In Starr v National Coal Board [1977] 1 WLR 63, Scarman LJ said (at 68) that ‘a stay, if granted, either shuts out the plaintiff from the seat of justice or compels him against his will to submit to a medical examination and, of course, that is an invasion of his personal liberty’.

36    Be that as it may, it has long been recognised that the courts have power to make such stay orders in appropriate cases, even in the absence of specific statutory authority. This is an instance of the court’s ‘ample jurisdiction to order a stay whenever it is just and reasonable to do so’: Edmeades at 71 (Lord Denning MR, Davies and Widgery LJJ agreeing).

37    It may be preferable to avoid using the terminology of ‘inherent’ jurisdiction when discussing the powers of a court established by statute such as the Federal Court: see Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 618 (Wilson and Dawson JJ). But the point of substance is that the court has a general power to control its own proceedings, which extends to ordering either a permanent or temporary stay as the occasion demands. In Perera v GetSwift Limited [2018] FCAFC 202; (2018) 263 FCR 92 at [121]-[126] a Full Court (Middleton, Murphy and Beach JJ) identified the court’s power to stay competing class actions as resting in the court’s express and implied power to manage the cases before it. Their Honours found statutory authority to stay proceedings in the power in s 23 of the Federal Court of Australia Act 1976 (Cth) to make such orders as the court thinks appropriate, as well as in the overarching purpose of the civil practice and procedure provisions, found in s 37M(1), to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. The Full Court also referred at [125] to the court’s general power to control its own proceedings, which ‘extends to ordering either a permanent or temporary stay as the occasion demands’. At [126] the Full Court said, ‘These powers are not constrained by any necessity to fit them into a specific category such as “abuse of process”’.

38    These powers permit the Federal Court, in an appropriate case, to stay a proceeding because an applicant is refusing to submit to a medical examination. Quite apart from s 37M of the Federal Court Act, it can scarcely be doubted that a superior court has power to control its own proceedings so as to ensure a just determination of a proceeding before it. In Alder v Khoo [2010] QCA 360 at [29], Chesterman JA (Muir and White JJA agreeing) described a stay ordered until the appellant submitted to the taking of a blood sample as ‘the usual, orthodox order in the circumstances’. In this court, Hill J in McKinnon v Commonwealth of Australia [1999] FCA 505 ordered a stay because of an applicant’s refusal to be medically examined. In an earlier ex tempore judgment (McKinnon v Commonwealth of Australia [1998] FCA 1095) his Honour considered it to be clear enough law that the court would grant a stay of proceedings ‘if it was demonstrated that a reasonable request had been made that the applicant attend a medical examination, but that request had not been complied with in circumstances where clearly the case of the Respondents could be materially affected by the failure to attend the examination’. In neither judgment did his Honour examine the source of the power. But in McKinnon v Commonwealth of Australia [1999] FCA 717 at [6] the Full Court affirmed the orders he made.

39    The importance of ensuring a just determination of a cause is the basis of such a stay. That was made explicit in Starr v National Coal Board. The facts were somewhat different to the present case, in that Mr Starr had agreed in principle to a medical examination, just not by the doctor whom the defendants had nominated. After examining the course of authority in the Court of Appeal, Scarman LJ said (at 70):

So what is the principle of the matter to be gleaned from those cases? In my judgment the court can order a stay if, in the words of Lord Denning MR in Edmeades’ case, the conduct of the plaintiff in refusing a reasonable request for medical examination is such as to prevent the just determination of the cause. I think that those words contain the principle of the matter. We are, of course, in the realm of discretion. It is a matter for the discretion of the judge, exercised judicially on the facts of the case, whether or not a stay should be ordered. For myself, I find talk about ‘onus of proof’ in such a case inappropriate. There is, I think, clearly a general rule that he who seeks a stay of an action must satisfy the court that justice requires the imposition of a stay.

40    The Court of Appeal did not overlook the importance of a litigant’s right to personal liberty. But that was not the only right involved. Scarman LJ went on (at 70-71, citations omitted):

In the exercise of the discretion in this class of case, where a plaintiff has refused a medical examination, I think the court does have to recognise … that in the balance there are, amongst many other factors, two fundamental rights which are cherished by the common law and to which attention has to be directed by the court. First … 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 advisers 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 witnesses, if the case be one in which expert testimony is significant.

Geoffrey Lane LJ made similar observations at 75, as did Cairns LJ at 77. The decisive factor is that of the interests of justice; of the just determination of the cause: Scarman LJ at 71C.

(Emphasis added.)

39    Mr Hastwell says that with the exception of R (Y) v Croydon London Borough Council [2016] 1 WLR 2895, all the cases relied upon by the primary judge were personal injury claims, motor vehicle accident claims and a medical negligence claim. He says such categories of cases should be distinguished from the present because they involve strict liability.

40    Mr Hastwell also drew the Court to a few additional cases, notably two decisions of the New South Wales Supreme Court in Donnelly v Shallard (1936) 53 WN (NSW) 121 per Bavin J and Emery v Hobson (1944) 61 WN (NSW) 136 per Maxwell J in which that Court ruled it did not have jurisdiction to order a stay absent specific statutory authority. Reliance on these authorities ignores the principles that have developed in the intervening period, as stated by Murphy J in Furesh (as administrator of Intestate Estate of Slipcevich) v Schor [2013] WASCA 231; (2013) 45 WAR 546 (at [68]):

Despite early New South Wales authority to the contrary (Donnelly v Shallard (1936) 53 WN (NSW) 121 per Bavin J and Emery v Hobson (1944) 61 WN (NSW) 136 per Maxwell J), it has been generally accepted in Australia and England for some considerable time that the court has the inherent power to stay proceedings if a plaintiff refuses a reasonable request for a medical examination. For example, in Starr v National Coal Board [1977] 1 WLR 63; [1977] 1 All ER 243 (Starr), the plaintiff, who was claiming damages against his employers for personal injuries, objected to examination by the specific doctor chosen by the defendants but was willing to be examined by any other doctor of similar qualification and experience. The plaintiff did not give reasons. The employers applied to stay all further proceedings until the plaintiff submitted to an examination by their chosen doctor. The Court of Appeal dismissed an appeal against the primary judge’s order granting the stay. Scarman LJ said (at WLR 70–1; All ER 249–50):

In my judgment the court can order a stay if, in the words of Lord Denning MR in Edmeades’s case, the conduct of the plaintiff in refusing a reasonable request for medical examination is such as to prevent the just determination of the cause … The decisive factor, therefore, becomes, as I think Lord Denning MR recognised in Edmeades v Thames Board Mills Ltd [1969] 2 QB 67, that of the interests of justice; of the just determination of the particular case. I would add that it can only be the interests of justice that could require one or other of the parties to have to accept an infringement of a fundamental human right cherished by the common law. The plaintiff can only be compelled, albeit indirectly, to an infringement of his personal liberty if justice requires it. Similarly, the defendant can only be compelled to forgo the expert witness of his choice if justice requires it. [Emphasis added [in original]]

(Emphasis added.)

41    The primary judge applied the broader reasoning in Furesh at [32], [34] and [45] of his Honour’s judgment. There can be no doubt, on the authorities as examined by his Honour, that this Court has the power to grant a stay where an applicant fails to submit for a medical examination if the interests of justice require such a course in a given case. The primary judge’s reasoning cannot be faulted in this regard.

42    Mr Hastwell’s third and final submission on ground 1 is that ordering a stay where an applicant fails to submit to a medical examination infringes the doctrine of separation of powers. This is said to be because withholding consent to an event infringes personal liberty in this instance which would require an act of Parliament because statutory interpretation protects such rights by requiring clear and unambiguous language in any legislation before such a right can be abrogated.

43    The difficulty with this submission is that, in light of the rulings on the previous two submissions, Mr Hastwell has been unable to demonstrate that the AHRC Act impliedly precludes the ordering of a stay in such circumstances, nor has he been able to demonstrate that the absence of any specific statutory provision empowering the grant of a stay in that Act or the SDA or DDA implies that the Court is not empowered to make such an order. As cited above, the primary judge at [37]-[39] correctly made plain that this Court has a general power to control its own proceedings to ensure a just determination of the cause before it. This general power is to be found in s 23 of the Federal Court Act which permits the making of such orders as the Court thinks fit, as well as s 37M(1) by which the Court must facilitate the just resolution of disputes according to law as quickly, inexpensively, and efficiently as possible.

44    For these reasons, proposed ground 1 could not succeed.

Proposed ground 2

45    The second proposed ground of appeal for Mr Hastwell is as follows:

Ground 2 – Pre-existing anxiety is admitted/no evidence as to pre-existing depression

2.    It is contended that [the primary judge] erred by finding as fact that “....it is open on the state of the evidence and the pleadings for Kott Gunning to put a case that any anxiety or depression is pre-existing....” at [14] because it has been admitted that [Mr Hastwell’s] anxiety was pre-existing his employment at [Kott Gunning]. There is also no evidence before the court which suggests that [Mr Hastwell] had depression before he commenced employment at [Kott Gunning].

46    Mr Hastwell’s submissions in support of this ground simply reiterated the content of the ground.

47    The difficulty is that while Mr Hastwell has admitted to pre-existing anxiety, his particulars of loss and damage include “anxiety and depression” and his trial affidavit and medical evidence indicate that he suffers from increased levels of anxiety and depression as a result of the acts and omissions of Kott Gunning and its employees.

48    Kott Gunning contends, correctly, that it, rather than Mr Hastwell, bears the evidentiary burden of demonstrating that Mr Hastwell’s disabilities were due to a pre-existing condition as it contends. Kott Gunning relies upon Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. Mr Hastwell takes issue with the applicability of those authorities because, he says, they relate only to permanent personal injury caused by negligence. The authorities should not be regarded as being so confined. There is absolutely no reason or policy for confining them in that way. Clearly the underlying purpose of the onus shifting to a respondent to demonstrate if so asserted, that disabilities were due to a pre-existing condition is just as applicable in the case of a mental condition as it is to a physical condition.

49    As to the second purported distinction, it is unclear whether Mr Hastwell’s claim is based in any part in negligence. There is a heading of negligence in the statement of claim, but no pleading or particulars in support of it. Assuming in his favour that he does not contend negligence, there is no reason to consider that the shifting of the onus to a defending party in the Watts or Purkess sense is confined to cases of negligence. The shift of onus has also long been applied in workplace cases based on the same facts constituting a breach of an employment contract: see for example Simpson v Midalco Pty Ltd, (unreported, Full Court of the Supreme Court, WA, 7 December 1988).

50    There is (hotly contested) evidence to suggest that prior to his employment by Kott Gunning, Mr Hastwell developed a delusional disorder, including paranoid and persecutory beliefs which affected his ability to interpret benign interactions and events. This is a topic to which Mr Hastwell takes great exception and is the subject of a number of grounds dealt with below.

51    This contested evidence, upon which Kott Gunning relies, is Mr Hastwell’s own particularisation of a claim that he filed on 30 November 2018 in the Supreme Court of New South Wales in case number 2018/271285 against the Health Care Complaints Commission (the HCCC proceedings). In that claim, Mr Hastwell set out at [74] of his particulars of claim (which was in evidence in this appeal) a series of findings of Dr Parmegiani, alleging that Dr Parmegiani had no evidence to make diagnoses of delusional disorder and paranoia (HCCC particulars). That claim was directed to a complaint about Dr Parmegiani’s diagnosis. Mr Hastwell made Kott Gunning aware of these assertions in “without prejudice” communications with them. Kott Gunning, or its advisors, then sought the particulars from the Supreme Court of New South Wales and were provided with them.

52    At no point did the primary judge accept the truth of such diagnoses, nor did Kott Gunning contend the diagnoses were true. The evidence was never treated as being admissible to establish the truth of the opinions expressed, but was treated only as constituting a proper basis for Kott Gunning seeking to obtain its own psychiatric evidence going, not only to the question of causation (that is, in relation to whether the disabilities were due to a pre-existing condition), but also to the question of Mr Hastwell’s credibility.

53    Undoubtedly, as Mr Hastwell agreed before the primary judge, questions such as his diagnosis, whether he has pre-existing anxiety, whether that anxiety had been exacerbated by Kott Gunning and what his capacity was for work were all relevant issues in the proceedings. At all times, Mr Hastwell has argued that Kott Gunning should simply accept the medical evidence on which he wishes to rely because they have put in issue the underlying facts, which he says caused his problems. That contention must be rejected on two bases. First, while it is true that some of the more serious assertions raised by Mr Hastwell have been denied, not all the assertions are denied.

54    More significantly, the suggestion that Kott Gunning should simply rely upon medical evidence which Mr Hastwell wishes to call without the opportunity of calling its own evidence was never seriously capable of being accepted. The primary judge dealt, correctly, with these matters in the following passage of his reasons (at [59]-[60]):

59    Mr Hastwell submitted that there was no need for Kott Gunning to adduce their own evidence on his psychiatric condition, as his witness, Dr Hollo had already answered the necessary questions. He said that if Kott Gunning wished to, they were free to cross-examine her, and seek to undermine her evidence that way, or they could seek to ‘discredit’ her evidence in its submissions. But these arguments reflect a misunderstanding of the adversarial system of justice of which this court is a part. The obligation to afford a respondent a fair trial is not fully discharged by permitting the respondent to challenge evidence adduced by the applicant in submissions, or in cross-examination. It is fundamental to a fair trial that all parties have a reasonable opportunity to adduce their own admissible evidence relevant to the matters in issue. As Widgery LJ explained in Edmeades at 73:

If, in fact, the defendant is deprived of medical advice on some aspect of the case and the only evidence on that aspect is that given by the plaintiff’s doctors, I see no way by which the balance can be adjusted. If the trial judge thinks that the plaintiff’s doctors are credible, it seems to me that he would then have to follow their evidence and a great injustice to the defendant might arise. The test, I agree, is whether in the circumstances of the particular case it is reasonable that a stay should be ordered so that justice shall be done between the parties.

60    Mr Hastwell submitted that ‘[Kott Gunning] must merely disprove the facts that I say gave rise to the anxiety and depression and therefore unlike personal injury claims medical evidence is irrelevant to the defence’. That seems to be a submission that it would be fair to confine Kott Gunning to disproving the alleged acts of bullying, harassment, and discrimination, so that they could not adduce evidence on the question of loss or damage. That proposition only needs to be stated for it to be apparent that it is wrong, and for the reasons given above I reject it.

(Emphasis added.)

55    Again, the reasoning of the primary judge was correct. Proposed ground 2 could not succeed.

Proposed ground 3

56    Proposed ground 3 is similar and is expressed as follows:

Ground 3 – It is not necessary for [Mr Hastwell] to be medically examined by a psychiatrist at the request of [Kott Gunning]

3.    It is contended that [the primary judge] erred by finding as fact that a psychiatric examination by a psychiatrist nominated by [Kott Gunning] is necessary. As the defence denies all the allegations in the statement of claim, [Kott Gunning] must only disprove the facts that [Mr Hastwell] claims gave rise to the anxiety and depression. A medical examination at the request of [Kott Gunning] would be an admission of liability when all allegations indicated in the statement of claim have been denied. In addition, it is also contended that His Honour erred by finding as fact that a doctor can answer questions regarding mitigation of loss. However, it is open to [Kott Gunning] to obtain its own evidence regarding mitigation of loss. An occupational physician is also qualified to assess employment related claims.

57    In support of this ground, Mr Hastwell advances three reasons why the primary judge’s statements of the issues in dispute between the parties (at [2]-[28]) which led his Honour to a conclusion that it was reasonable for Kott Gunning to adduce its own psychiatric evidence contain errors of fact and law:

(a)    first, Mr Hastwell says there is no agreed factual basis upon which Kott Gunning could instruct a psychiatrist because Kott Gunning denies all facts said to give rise to the (exacerbated) anxiety and depression. Mr Hastwell says that what Kott Gunning is really proposing is to have a psychiatrist reiterate its defence that there is no causal connection between the anxiety and depression and his employment at Kott Gunning;

(b)    secondly, it is contended that instructing a medico-legal practitioner with competing factual scenarios is unworkable and illogical because that practitioner cannot presume to be the arbiter of fact which is the role of a judge or jury; and

(c)    thirdly, Mr Hastwell essentially repeats and combines the above two arguments and asserts that in an adversarial system each party presents their own case to the court which in most cases is based on competing allegations of fact for the court to rule on. There is nothing controversial about the proposition though it is unclear how it assists Mr Hastwell in resisting Kott Gunning’s attempts to adduce its own evidence.

58    Relevantly to this ground, the primary judge said the following (at [14]-[18]):

14    On the basis of this material, it is clear that the state of Mr Hastwell’s mental health, before, during and after his employment with Kott Gunning, will be an issue at trial. While it is only referred to briefly in the pleadings as they currently stand, it appears from the other evidence I have described, in particular Dr Hollo’s report, that the issue will be a significant aspect of his damages claim. It is open on the state of the evidence and the pleadings for Kott Gunning to put a case that any anxiety or depression was pre-existing, and they say they do intend to put such a case. That will raise the additional question of whether, if those conditions were pre-existing, they were exacerbated by Mr Hastwell’s experiences at Kott Gunning.

15    In oral submissions, Mr Hastwell summarised the issues succinctly in the following way: ‘Is Haydyn depressed as a result of his treatment by Kott Gunning? Is Haydyn anxious as a result of his treatment by Kott Gunning? Yes, he had a pre-existing anxiety. Is that anxiety being exacerbated, etcetera, by Kott Gunning?’. He accepted that these were relevant issues in the proceedings, including in relation to his capacity to work and economic loss. But he did not accept that it was necessary for Kott Gunning to adduce its own psychiatric evidence about them.

16    Kott Gunning’s submissions indicate that they want Mr Hastwell to be medically examined so that they can respond to his medical evidence. They said they need to adduce their own expert medical evidence as to the nature, extent, cause and prognosis of any medical condition from which he suffers. That they have this intention is evidenced by an affidavit sworn on 1 October 2019 by Thomas Darbyshire, a partner at Kott Gunning.

17    The proceedings do not authorise Kott Gunning to conduct a wide ranging inquiry into any medical condition, but in truth I do not believe that is what Kott Gunning propose. Their subsequent, more detailed submissions show that they want to adduce evidence about his alleged anxiety and depression. They say that because there is evidence of a pre-existing psychiatric or psychological issue, there will need to be a medical assessment to differentiate (if possible) between symptoms caused by that issue and symptoms caused by their alleged unlawful conduct. That is part of the broader issue of whether Mr Hastwell’s present psychiatric state and any incapacity to earn income was caused by conduct in which Kott Gunning engaged, or conduct of its staff for which it may be liable.

18    Kott Gunning also say they need Mr Hastwell to be examined to determine his capacity to work from the time his employment with them ceased. They say it will also be relevant to mitigation of loss. I accept that Kott Gunning have these intentions also, although the question of whether Mr Hastwell was incapacitated for work (which would support his damages claim) and the question of whether he should have mitigated his loss by finding work (which could reduce the value of his claim) may well resolve to the same issues: could he, or could he not, work, and if so in what capacity and when? Also, given Dr Hollo’s prognosis for Mr Hastwell and her views about his capacity for work in the future, the issue of future capacity for work may not prove to be prominent.

(Emphasis added.)

59    In opposition to this ground, Kott Gunning also relies on [59]-[60] of the primary judgment which has already been set out above (at [54]).

60    Mr Hastwell also argues that another reason that he should not be medically examined is because Kott Gunning have refused to provide him in advance with the facts upon which it wishes to brief the psychiatrist. However, a party is not required to obtain another party’s agreement to the instructions it provides to an expert which it engages and the primary judge dealt with this correctly when his Honour said (at [67]):

Another objection Mr Hastwell raised was that Kott Gunning have not agreed to the exact nature of their proposed instructions to Dr Mander, including what material would be included in those instructions. But it is not usually necessary for a respondent to run its questions to an expert witness by the applicant or the court in advance. It is conceivable that particular questions could be so intrusive or unnecessary that an intention to ask them affords a reasonable basis for objection. But there is no reason to think that Kott Gunning intend to ask such questions here. From the evidence and the description of the issues they have given, it may be inferred they intend to ask, in broad terms, what psychiatric conditions if any Mr Hastwell has and how severe they are, what caused them, whether his alleged experiences with Kott Gunning caused or exacerbated them, and the effect of the conditions on his capacity to work, past and future. In any event, I do not accept that Mr Hastwell objects because he does not know the questions that Dr Mander will be asked. It is plain he is not prepared to be examined by Dr Mander in any event.

61    The entirely conventional position is that to the extent that any expert opinion is based on assumed facts, those facts must be identified and ultimately established by admissible evidence for the expert opinion to be admitted. Mr Hastwell contends that the psychiatric evidence would achieve trial by doctor, rather than trial by judge. That is clearly not the way the expert evidence would have proceeded. If relevant assumptions on which a psychiatrist is asked to rely are not established, then the conclusions of the psychiatrist will fall away. It would not be open for a psychiatrist, in any event, to express views on the question of whether or not the events relied upon by Mr Hastwell in his statement of claim actually occurred. The opinion provided by a psychiatrist would express a view, if such a view is capable of being formed, as to whether or not, and to what extent and with what effect, Mr Hastwell suffers from a mental disability and what bearing, if any, such disability may have on his credibility.

62    Even if the psychiatrist goes so far as to say that he does not accept that it is likely the events described by Mr Hastwell actually occurred, that will not be the ultimate finding of fact. It is for the Court to reach conclusions on findings of fact, and submitting to a medical examination is no substitute for that process, nor is it ever intended or presumed to be.

63    Mr Hastwell has also endeavoured to pursue this argument without success in the HCCC proceedings, in which he sought judicial review of two decisions of the HCCC in which that body concluded that Mr Hastwell’s complaint about Dr Parmegiani’s report should not be progressed. In Hastwell v Health Care Complaints Commissioner (NSW) [2020] NSWSC 728, Rothman J said (at [83]):

Moreover, lest the foregoing be seen as an endorsement of the argument on merits, I should make it clear that the submission put by [Mr Hastwell] that “the only facts that a medico-legal doctor can ‘choose’ to reach a diagnosis are those presented to him/her by the patient as indicated in my complaint” is patently wrong. If a psychiatrist does not believe the history and circumstances or context of complaints, that psychiatrist is entitled to reach a diagnosis on the basis of the non-acceptance of the facts. This ground is also not established and there is no jurisdictional error, nor error of law in the decisions of the Commission.

64    At the time of hearing this appeal, an appeal by Mr Hastwell against Rothman J’s decision was pending. On 9 February 2021, the New South Wales Court of Appeal heard concurrently Mr Hastwell’s application for leave to appeal and his appeal. On 3 March 2021, the Court (Basten, Leeming and White JJA) held unanimously that none of Mr Hastwell’s proposed grounds of appeal enjoyed prospects of success sufficient to warrant a grant of leave to appeal and the summons was dismissed with costs: Hastwell v Health Care Complaints Commission (NSW) [2021] NSWCA 22 per Leeming JA (at [94]) with whom Basten JA agreed (at [4]) and White JA agreed (at [95]).

65    For the foregoing reasons proposed ground 3 would not succeed.

The Parmegiani Report

66    Proposed grounds 4-9 raise various complaints, based on certain provisions of the Evidence Act 1995 (Cth), about the primary judge’s use of extracts of a report prepared by Dr Parmegiani. Before dealing with each of these proposed grounds, it is convenient to say a little more about the factual context from which Mr Hastwell says appellable error arose.

67    As noted by the primary judge (at [19]), it appears that Mr Hastwell was examined by Dr Parmegiani in 2016 for the purpose of his claim against Kott Gunning. Following Dr Parmegiani’s preparation of his medico-legal report, Mr Hastwell lodged a complaint with the HCCC regarding the content of Dr Parmegiani’s report and his conduct in its preparation. As noted above, these decisions of the HCCC became the subject of judicial review proceedings before Rothman J in Hastwell [2020] NSWSC 728.

68    In advancing the judicial review proceedings, Mr Hastwell filed particulars of his claim against the HCCC (HCCC particulars). In those particulars (at [74]), Mr Hastwell extracted various portions of Dr Parmegiani’s report in which it is said that Mr Hastwell suffers from a “delusional disorder”. In “without prejudice” communications with Mr Hastwell, Kott Gunning was made aware of the HCCC proceedings and the HCCC particulars filed therein. Rothman J heard the HCCC proceedings on 16 May 2019, and in the period between the hearing and his Honour delivering judgment on 12 June 2020, Kott Gunning made, and was granted, an access request to the HCCC particulars.

69    In Hastwell (No 5), Kott Gunning sought to adduce the HCCC particulars, and in particular the extracts of Dr Parmegiani’s report extracted therein for the limited purpose of demonstrating that it had a proper basis to seek psychiatric evidence going to Mr Hastwell’s credibility. The primary judge allowed these extracts of Dr Parmegiani’s report to be adduced for this limited purpose only, saying (at [23]-[28]):

23    Mr Hastwell objected strongly to any reliance on Dr Parmegiani’s report. He submitted that the report was not in evidence, and the things Kott Gunning said about it were drawn from a pleading in a separate proceeding which refers only to extracts from the report and do not represent it fairly in its totality. He also submitted that ‘a medico-legal doctor can’t seek to determine the facts of a case’. He criticised Dr Parmegiani for assuming the facts and inferring a psychiatric condition from the assumed facts. Mr Hastwell said that whether his (Mr Hastwell’s) evidence is to be accepted can only be determined by the judge.

24    Kott Gunning accept that the evidence they have adduced about Dr Parmegiani’s report is not admissible to establish the truth of any of the opinions apparently expressed in the report. That concession was inevitable. Neither Kott Gunning nor the court have the report; all that has been put into evidence are particulars of claim in the Supreme Court of New South Wales which contain excerpts from the report. If the report was to be relied on as evidence of the truth of its contents, it would need to be read as a whole and it is possible that doing so would put a different complexion on the excerpts.

25    But that is not the purpose for which Kott Gunning have adduced the evidence of the contents of the report. The purpose is a more limited one; it is to show that Kott Gunning have a proper basis to seek to obtain psychiatric evidence going to Mr Hastwell’s credibility. That any applicant would be sensitive about the possibility of evidence of this kind being adduced is understandable. If a respondent were to require an applicant to submit to psychiatric examination based on nothing more than speculation or conjecture that the applicant’s evidence might be affected by a psychiatric condition, that could well be judged not to be a reasonable request which engages the power to order a stay.

26    The purpose of adducing evidence about Dr Parmegiani’s opinions is no more than to dispel that concern. It establishes that Kott Gunning’s position is not based on mere conjecture; a person apparently qualified to reach the opinion has apparently expressed it. The court does not have to reach a view on whether the views Dr Parmegiani has apparently expressed are correct or might be understood differently in their full context in order to find that they provide a reasonable basis for the line of inquiry Kott Gunning wish to take. So Kott Gunning are not relying on the evidence as to Dr Parmegiani’s opinion in order to prove the truth of the opinion. It is the holding of the opinion (right or wrong) by a person apparently qualified to express it that is the fact proven. This use of the evidence does not infringe the opinion rule in s 76 of the Evidence Act, and so does not require proof of the matters required to establish the exception for expert opinion in s 79.

27    There is a question about whether that evidence, contained as it is in a document filed by Mr Hastwell, is admissible as evidence of an admission: see Evidence Act s 81. But it is not necessary to resolve that question; to the extent that the evidence would otherwise be objectionable as hearsay, it is admissible in the present interlocutory application because Kott Gunning has adduced evidence as to its source: s 75.

28    I am therefore satisfied that the evidence establishes that Kott Gunning have a reasonable basis for its wish to have a psychiatrist nominated by it examine Mr Hastwell in order to determine whether the doctor may be able to provide admissible evidence going to Mr Hastwell’s credibility. It is not necessary to consider Mr Hastwell’s other criticisms of Dr Parmegiani’s report. If he submits to an examination by an expert psychiatrist, Dr Parmegiani’s report may not go into evidence at all (even if privilege over it has been waived).

70    As will be made apparent, Mr Hastwell seeks to demonstrate error in this ruling on numerous bases.

Proposed ground 4

71    Proposed ground 4 is as follows:

Ground 4 – section 75 Evidence Act 1996 (Cth)

4.    It is contended that [the primary judge] made an error of law by applying an improper construction of s 75 Evidence Act 1995 (Cth) in that he erred by admitting hearsay evidence of extracts of Dr Parmegiani’s report. Whilst the hearing held on 19 December 2019 was by way of Form 35, that is, an interlocutory application, the finality of the orders made by [the primary judge] by staying proceedings was a conclusive adverse determination and therefore did not give the hearing the nature of an interlocutory hearing. It is therefore submitted, it was an error of law to rely on the exception under s 75 of the Evidence Act 1996 (Cth) and admit hearsay evidence of extracts of Dr Parmegiani’s report in forming his judgment.

72    The relevant part of the primary judge’s reasons appears at [27]:

There is a question about whether that evidence, contained as it is in a document filed by Mr Hastwell, is admissible as evidence of an admission: see Evidence Act s 81. But it is not necessary to resolve that question; to the extent that the evidence would otherwise be objectionable as hearsay, it is admissible in the present interlocutory application because Kott Gunning has adduced evidence as to its source: s 75.

73    Section 75 of the Evidence Act provides as follows:

75    Exception: interlocutory proceedings

In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

74    Mr Hastwell’s submissions on this ground advance the same argument made by him in relation to the question of leave to appeal, namely, that the decision in Hastwell (No 5) had the character and effect of a final judgment such that it cannot be considered interlocutory. He also now relies on a number of additional authorities that concern the character of interlocutory hearings specifically in relation to hearsay evidence.

75    This ground cannot succeed. The proceedings were clearly interlocutory for the reasons given above (at [13]-[28]). Moreover, as Kott Gunning correctly points out, the same tests have been applied in determining whether proceedings are interlocutory for the purposes of requiring leave to appeal and for the purposes of s 75 of the Evidence Act: Ashby v Commonwealth (No 3) [2012] FCA 788; (2012) 206 FCR 444 (at [8]); Bray v F Hoffman-La Roche Ltd [2000] FCA 243; (2002) 118 FCR 1 (at [29]-[31]); FAI Home Security Pty Ltd v Price [1999] VSC 274 (at [27]-[28]); and Ungar v Attorney-General for New South Wales [2019] NSWCA 86 (at [113]-[116]).

76    Mr Hastwell relies upon Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 3) (1996) 64 FCR 55 per Lindgren J (at 59-60) where his Honour said:

The matter of the use of hearsay evidence is referred to in O 33, r 2 of the Federal Court Rules 1979 (Cth). That rule empowers a judge to admit hearsay evidence in certain circumstances but not “as evidence on an issue at a trial”. The expression “trial” is defined in O 1, r 4 as “any hearing other than an interlocutory hearing”. The expression “interlocutory hearing” is not defined. I regard myself as engaged in a trial of the issue raised by par 3 of Skadden’s notice of motion.

I should refer to s 75 of the Evidence Act 1995 (Cth). This provides as follows:

“In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.”

There is no definition of “interlocutory proceeding” in that Act. However, “interlocutory proceedings” are referred to in the Law Reform Commission’s Report No 38 Evidence (1987) (ALRC 38) which preceded the passing of the Act, as (par 143, p 79, fn (33)):

“... proceedings that are not final, usually dealing with procedural problems that arise in preparing a case for trial, but including proceedings for injunctions pending the trial of an action.”

The express reference to “proceedings for an injunction pending the trial of an action” suggests that a proceeding for a permanent injunction was not intended to be regarded as an interlocutory proceeding. In any event, in my view it is not.

77    Allstate was explained and distinguished in Brouwer v Titan Corporation Ltd (1997) 73 FCR 241 where Black CJ, Lindgren and Sackville JJ observed (at 244A-244C) that the order considered final by Lindgren J in Allstate was one permanently restraining a party from exercising a right conferred independently by a foreign statute, and that the order might have been classified differently if the right at issue “was an incident of procedures governing the proceedings”. Their Honours continued (at 244C-244D):

It seems to us that, consistently with the authorities to which we have referred, the word “interlocutory” in the present context has been understood to bear a meaning by reference to the meaning of the word “final”. The final orders to be made in proceedings No VG 346 of 1993 will be orders which will finally determine the rights of the parties to those proceedings in relation to the issues presented for decision in them. In contrast, a decision in relation to a subpoena, the issue of which is a procedural step in the existing proceedings provided for by the rules of court governing them, seems to us to be a paradigm case of an interlocutory judgment.

78    More recently, in Ashby Rares J said (at [9]):

It is a commonplace now that Courts proceed to give default or summary judgment on hearsay evidence. Often it would be inconvenient and unnecessary to require primary evidence to be adduced: eg in applications under r 5.23(2). That rule deals with a variety of circumstances in which judgment may be given when a party is in default as defined in r 5.22. This includes when a party has not complied with an order or a requirement in the Rules or a party is not prosecuting the proceedings with due diligence. In one sense, a failure to prosecute proceedings with due diligence can be seen as an abuse of the process of the Court because of the defaulting party’s failure to conduct the proceedings in a way consistent with the overarching purpose of the civil practice and procedure provisions now applicable by force of Pt VB of the Federal Court of Australia Act: see s 37N(1).

79    It is true that the terms “final” and “interlocutory” may mean different things in different contexts, as noted in Malouf v Malouf (1999) 86 FCR 134 (at [33]). However, nothing in the authorities cited by Mr Hastwell in relation to this ground on the question of leave to appeal calls into doubt the primary judge’s reasoning as to the interlocutory nature of the decision in Hastwell (No 5) and therefore the admissibility of hearsay evidence under s 75. As noted, the decision did not finally determine the rights of the parties on the substantive issues in dispute.

80    Proposed ground 4 cannot succeed.

Proposed ground 5

81    Proposed ground 5 of the proposed grounds of appeal is as follows:

Ground 5 – section 79 Evidence Act 1995 (Cth)

5.    It is contended that [the primary judge] made an error of law by failing to properly apply s 79 Evidence Act 1995 (Cth) in that admitting hearsay evidence of extracts of a report by Dr Parmegiani does not comply with the requirements of admission of opinion evidence under of [sic] s 79 of the Evidence Act 1995 (Cth). Such extracts do not constitute an admissible opinion for the following reasons:

(a)    such extracts fail to set out the material facts, assumptions and investigations upon which those extracts are based and the reasons for each opinion expressed;

(b)    so far as the extracts of opinion are based on facts ‘observed’ by Dr Parmegiani, any facts identified have not been admissibly proved by Dr Parmegiani and so far as the extracts of the opinion are based on ‘assumed’ or ‘accepted’ facts, they have not been identified nor proved;

(c)    the extracts do not establish the facts upon which the opinion is based nor form a proper foundation for it;

(d)    the extracts do not demonstrate or examine the scientific or other intellectual basis of the conclusions reached in that there is no explanation that the extracts explain Dr Parmegiani’s field of ‘specialised knowledge’ in which he has ‘trained, studied or experienced’, and on which the opinions are ‘wholly or substantially based’, and how that training applies to the facts assumed or observed so as to produce the opinion propounded;

(e)    The extracts of opinion are not admissible unless their constituent facts are proved by admissible evidence;

(f)    the extracts are sweeping statements unsupported by evidence and are not based on specialised knowledge and are examples of ipse dixit appearing as expert knowledge.

82    Section 79 of the Evidence Act is in these terms:

79    Exception: opinions based on specialised knowledge

(1)    If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2)    To avoid doubt, and without limiting subsection (1):

(a)    a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and

(b)    a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:

(i)    the development and behaviour of children generally;

(ii)    the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

83    In advancing this ground, Mr Hastwell has failed to appreciate that at no point has it ever been suggested that the extracts from Dr Parmegiani’s report were to be admitted to prove the truth of the opinions expressed. He relies on Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (at [59]-[86]) but again, the principles there expressed are concerned with the proper approach to adducing expert opinion evidence where it is adduced to prove the truth of the opinion. As was put to Mr Hastwell by the Court during the hearing, Makita stands for the proposition that the factual premises upon which an expert is tasked with providing an opinion must be exposed so that they may be tested and proved or disproved. There has never been any suggestion that such proper course would not be followed in this matter were Mr Hastwell to undergo an examination for the purpose of allowing Kott Gunning to seek to adduce its own expert opinion at trial.

84    The primary judge made it tolerably clear (at [25]-[26]) that the extracts from Dr Parmegiani’s report were adduced only for the limited purpose of supporting Kott Gunning’s case that it should be permitted to have Mr Hastwell examined so that an entirely different expert could express their own opinions. In particular, the primary judge said (at [26]):

… The court does not have to reach a view on whether the views Dr Parmegiani has apparently expressed are correct or might be understood differently in their full context in order to find that they provide a reasonable basis for the line of inquiry Kott Gunning wish to take. So Kott Gunning are not relying on the evidence as to Dr Parmegiani’s opinion in order to prove the truth of the opinion. It is the holding of the opinion (right or wrong) by a person apparently qualified to express it that is the fact proven. This use of the evidence does not infringe the opinion rule in s 76 of the Evidence Act, and so does not require proof of the matters required to establish the exception for expert opinion in s 79.

85    The effect of s 79 of the Evidence Act is to dis-apply the opinion rule in s 76(1). That section (in full) provides:

76    The opinion rule

(1)    Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

(2)    Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

Note:    Specific exceptions to the opinion rule are as follows:

•    summaries of voluminous or complex documents (subsection 50(3));

•    evidence relevant otherwise than as opinion evidence (section 77);

•    lay opinion (section 78);

•    Aboriginal and Torres Strait Islander traditional laws and customs (section 78A);

•    expert opinion (section 79);

•    admissions (section 81);

•    exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3));

•    character of and expert opinion about accused persons (sections 110 and 111).

Other provisions of this Act, or of other laws, may operate as further exceptions.

Examples:

(1)    P sues D, her doctor, for the negligent performance of a surgical operation. Unless an exception to the opinion rule applies, P’s neighbour, W, who had the same operation, cannot give evidence of his opinion that D had not performed the operation as well as his own.

(2)    P considers that electrical work that D, an electrician, has done for her is unsatisfactory. Unless an exception to the opinion rule applies, P cannot give evidence of her opinion that D does not have the necessary skills to do electrical work.

86    The ruling by the primary judge (at [24]-[26]) was correct. In circumstances where the extracts of Dr Parmegiani’s report were not adduced to prove the existence of facts about the existence of which the opinion was expressed, the opinion rule did not apply so that s 79 was not required to be satisfied.

87    Proposed ground 5 would not succeed.

Proposed ground 6

88    Proposed ground 6 is as follows:

Ground 6 – section 108C Evidence Act 1995 (Cth)

6.    It is contended that [the primary judge] made an error of law by applying an improper construction of s 108C Evidence Act 1995 (Cth) by granting leave to admit hearsay evidence of extracts of Dr Parmegiani’s report in that the proper construction of section 108C applies to trials involving child behaviour, development, and violence and other such behavioural issues affecting the ability to give credible evidence which has no application in this matter and therefore His Honour improperly admitted those extracts in evidence based on this provision.

89    In his written outline and oral submissions, Mr Hastwell advanced a much broader proposition than that expressed in the draft notice of appeal. He asserts that the primary judge was precluded from relying on extracts of Dr Parmegiani’s report under s 108C because, when properly construed, the provision cannot be used to determine the probability of the truthfulness of whether evidence of the alleged bullying and harassment occurred because it is something for a judge to determine. Although Mr Hastwell appeared to accept in oral submissions that the primary judge did not rely on s 108C in admitting extracts from Dr Parmegiani’s report for a limited purpose, he proceeded to submit that the primary judgment could set a precedent that allows employees to “weaponise” s 108C by allowing psychiatrists to opine regarding a claimant’s credibility at early stages of litigation. Mr Hastwell says such tactics would be tantamount to allowing judges to derogate their duty of fact finding to psychiatrists and allow them to assert the court’s authority.

90    The submissions are, with respect, misconceived. Section 108C provides for an exception to the credibility rule in s 102 of the Evidence Act which provides that credibility evidence is not admissible. The exception in s 108C provides as follows:

108C    Exception: evidence of persons with specialised knowledge

(1)    The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if:

(a)    the person has specialised knowledge based on the person’s training, study or experience; and

(b)    the evidence is evidence of an opinion of the person that:

(i)    is wholly or substantially based on that knowledge; and

(ii)    could substantially affect the assessment of the credibility of a witness; and

(c)    the court gives leave to adduce the evidence.

(2)    To avoid doubt, and without limiting subsection (1):

(a)    a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse); and

(b)    a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following:

(i)    the development and behaviour of children generally;

(ii)    the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

91    The language in s 108C makes plain that the exception only applies to evidence “given by a person” that concerns “the credibility of another witness”. To the extent Mr Hastwell contends that the extracts of Dr Parmegiani’s report constitute credibility evidence about him, that argument is both misguided and premature. Dr Parmegiani has not given evidence in these proceedings and Mr Hastwell is not yet a witness. It is certainly the case that Kott Gunning has raised concerns about Mr Hastwell’s credibility, and adduced extracts of Dr Parmegiani’s report to give that concern a proper basis, however, that is very different from the situations contemplated by s 108C where expert evidence is sought to be adduced to directly challenge a witness’ credibility. The extracts of Dr Parmegiani’s report have not been adduced to challenge Mr Hastwell’s credibility. They have been admitted only to support Kott Gunning’s position that it should be permitted the opportunity to challenge Mr Hastwell’s credibility by adducing its own expert evidence.

92    Were Mr Hastwell to submit to being medically examined, s 108C allows for the possibility that any such expert evidence that Kott Gunning may try to adduce as a result of the examination could be admitted to challenge Mr Hastwell’s credibility. However, it does not mean that any expert opinion will be admitted into evidence and automatically accepted as fact by this Court. The fundamental misunderstanding in Mr Hastwell’s argument is that submitting to a medical examination does not entail that any resulting expert opinion is immediately admitted into evidence. To the contrary, s 108C expressly requires a grant of leave before credibility evidence can be admitted under the section. So much was recognised by the primary judge (at [73]). Any evidence sought to be adduced under the s 108C exception is also still subject to the discretionary exclusionary provisions: s 135 and s 136 of the Evidence Act. These sections grant the Court ample discretion to ensure that the limited exception to the credibility rule contained in s 108C is not abused.

93    For completeness, it is observed that aside from the primary judge’s reference (at [73]) to the leave requirement at s 108C(1)(a), his Honour referred to the section more generally as follows (at [21]-[22]):

21    A psychiatric opinion on the credibility of Mr Hastwell’s evidence could be admissible under s 108C of the Evidence Act 1995 (Cth). That is an exception to the rule in s 102 that credibility evidence about a witness is not admissible. Section 108C(1) provides:

The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if:

(a)    the person has specialised knowledge based on the person’s training, study or experience; and

(b)    the evidence is evidence of an opinion of the person that:

(i)    is wholly or substantially based on that knowledge; and

(ii)    could substantially affect the assessment of the credibility of a witness; and

(c)    the court gives leave to adduce the evidence.

22    In Dupas v The Queen [2012] VSCA 328; (2012) 40 VR 182 at [271] the Court of Appeal of Victoria explained the purpose of the provision as follows:

The exception as enacted is thus directed to expert testimony of substantial probative value, relevant to the assessment of the reliability of a witness to facts in issue. It deals with the capacity of a witness to give credible evidence, having regard to some behavioural or other factor which may have affected that witness’s capacity to give accurate evidence. The exception permits expert evidence to be called as to behavioural factors - environmental, cognitive or otherwise - which would assist the court’s understanding of the capacity of a witness to give credible evidence.

94    These observations are undoubtedly correct and make plain that his Honour did not misconstrue s 108C nor did he rely on it in any way in admitting, for a limited purpose only, extracts of Dr Parmegiani’s report. The reference to Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507, as well as Mr Hastwell’s reference in oral submissions to a series of authorities on exceptions to the credibility rule demonstrates that s 108C is simply not confined to “trials involving child behaviour, development, and violence and other such behavioural issues …”. For example in Wotton v Queensland (No 4) [2015] FCA 1075 per Mortimer J (at [1] and [3]-[7]), the section was applied in proceedings under the Racial Discrimination Act 1975 (Cth). Section 108C(2) is expressed not to limit s 108C(1).

95    Accordingly, proposed ground 6 would fail.

Proposed ground 7

96    Proposed ground 7 is in the following terms:

Ground 7 – section 192 Evidence Act 1995 (Cth)

7.    It is contended that [the primary judge] made an error of law by failing to take into account the mandatory requirement of those issues pursuant to s 192 Evidence Act 1995 (Cth), in that he failed to exercise his discretion under s 192 by granting leave under s 108C Evidence Act 1995 (Cth) on whether to admit hearsay extracts of Dr Parmegiani’s report and by admitting such evidence was duly unfair and unreasonable to [Mr Hastwell] in that a number of relevant considerations had not been met in order to admit such evidence including:

(a)    tests for the admissibility of opinion evidence under s 79 Evidence Act 1995 (Cth) have not been met;

(b)    given the extracts of the report is in regards the “ultimate issue” and involves fact finding by Dr Parmegiani, following the rules of evidence are essential and to ensure a fair hearing there should be strict adherence to rules of evidence;

(c)    [Kott Gunning’s] attempts to profit from extracts of Dr Parmegiani’s report during the course of proceedings is unethical;

(d)    the report being the source of extracts of the report [Kott Gunning] seeks to adduce in evidence, whilst discovered, is currently privileged;

(e)    only extracts of the report are being relied upon not the whole report and therefore relying on such extracts is misleading and confusing;

(f)    the report needs to be read in light of the complaint to the Medical Council of New South Wales;

(g)    it has been open for [Kott Gunning] to seek to have privilege waived over the report which would have been the proper course of action to take. Accordingly, a considerable amount of time has been wasted by [Kott Gunning] in trying to rely on extracts of Dr Parmegiani’s report;

(h)    [Kott Gunning] has led no other evidence in support of their assertion regarding credibility;

(i)    s108C Evidence Act 1995 (Cth) has no bearing on this matter;

(j)    the pleadings in which the extracts of Dr Parmegiani’s report are found, read as a whole, relate to a complaint [Mr Hastwell] made regarding Dr Parmegiani’s report and indicate a number of factual, legal and medical issues which are either inconsistent, misleading or overwhelmingly false;

(k)    the failure to consider the significant problems the pleadings indicate why Dr Parmegiani’s report is problematic and inadmissible or has little to no probative value;

(l)    failed to take into account the medical evidence already filed and served in particular the evidence of Dr Claire Hollo which does not support [Kott Gunning’s] enquiries regarding credibility, in fact, her opinion rejects [Kott Gunning’s] assertions;

(m)     failed to take into account those issues indicated under ss 135 & 138 Evidence Act 1995 (Cth);

(n)    extracts of Dr Parmegiani’s report should have been seen as hearsay evidence and inadmissible;

(o)    To rely on extracts of a report which itself is subject to a complaint to the Medical Council of New South Wales and at the time of His Honour’s judgment, itself subject to judicial review proceedings (now on appeal) and then implement a permanent stay, is a failure to properly exercise the discretion and is disproportionate;

(p)    His Honour must give regard to s 192 Evidence Act 1995 (Cth) (and not in an abstract way), which he failed to do.

97    Section 192 of the Evidence Act provides as follows:

192    Leave, permission or direction may be given on terms

(1)    If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2)    Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a)    the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b)    the extent to which to do so would be unfair to a party or to a witness; and

(c)    the importance of the evidence in relation to which the leave, permission or direction is sought; and

(d)    the nature of the proceeding; and

(e)    the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

98    Mr Hastwell’s submissions essentially repeat the lengthy ground of appeal and the ground adds nothing of substance to the arguments advanced under proposed ground 6. In light of the Court’s findings on proposed ground 6, ground 7 cannot be sustained. Previous reference has been made to [21] and [24]-[26] of the primary judge’s reasons.

99    It is also important to turn to [73] of his Honour’s reasons, in which his Honour observed:

In addition, what is known about Dr Parmegiani’s report gives Kott Gunning a proper basis to seek psychiatric evidence which may go to Mr Hastwell’s credibility. It is necessary for there to be a fair trial for Kott Gunning to have the opportunity to seek to adduce expert evidence that is truly probative, in the sense that it could substantially affect the court’s assessment of Mr Hastwell’s credibility. The discretion of the court under s 108C(1)(c) to withhold leave to adduce such evidence ensures that the opportunity cannot be abused.

100    The primary judge did not give Kott Gunning leave to adduce evidence under s 108C of the Evidence Act. Rather, his Honour observed only (at [21]) that a psychiatric opinion on the credibility of Mr Hastwell’s evidence “could be” admissible under s 108C and then set out the terms of the section. As his Honour recognised (at [73]), the question of leave would have arisen at trial once Kott Gunning sought to adduce such evidence. The HCCC particulars, however, were admitted for the limited purpose explained at [24]-[26] of his Honour’s reasons. They were not admitted under s 108C and no leave was required to adduce them such that there was no cause for a consideration of s 192.

101    Proposed ground 7 would fail.

Proposed ground 8

102    Proposed ground 8 is in the following terms:

Ground 8 – Section 135 Evidence Act 1995 (Cth)

8.    It is contended that [the primary judge] made an error of law by failing to take into account those issues pursuant to s 135 Evidence Act 1995 (Cth) in that he failed to properly exercise his discretion by granting leave under s 108C Evidence Act 1995 (Cth) to admit evidence of extracts of Dr Parmegiani’s report, the probative value of which is substantially outweighed by the danger that the use of those extracts might be unfairly prejudicial, misleading, or confusing or cause undue waste of time because:

(a)    the report being the source of extracts of the report [Kott Gunning] seeks to adduce in evidence, whilst discovered, is privileged and therefore reliance on mere extracts is unfairly prejudicial;

(b)    only extracts of the report are being relied upon not the whole report and therefore relying on such extracts is misleading and/or confusing;

(c)    the whole report needs to be read in light of the complaint to the Medical Council of New South Wales otherwise to rely on the extracts is misleading and/or confusing;

(d)    it has been open for [Kott Gunning] to seek to have privilege waived over the entire report which would be the proper course of action to take. [Kott Gunning] has chosen not to take that course to date. Accordingly, a considerable amount of time has now been wasted by [Kott Gunning] by trying to rely on extracts of Dr Parmegiani’s report;

(e)    [Kott Gunning] has led no other evidence in support of their assertion regarding credibility, so to rely on extracts of a report which has little to no probative value is also extremely prejudicial and misleading;

(f)    s108C Evidence Act 1995 (Cth) has no bearing on this matter and should not be used as a vehicle to seek to determine a claimant’s truthfulness;

(g)    the failure to consider the significant problems the HCCC pleadings indicate why the whole report is problematic, inadmissible or has little to no probative value, significantly prejudices [Mr Hastwell];

(h)    the failure to take into account the medical evidence already filed and served, in particular the evidence of Dr Claire Hollo which does not support [Kott Gunning’s] enquiries regarding credibility. In fact, Dr Hollo rejects [Kott Gunning’s] assertions and therefore reliance on such extracts is prejudicial, confusing and misleading;

(i)    the extracts of Dr Parmegiani’s report should have been seen as hearsay evidence and inadmissible and therefore has little to know [sic] probative value;

(j)    tests for admissibility of opinion evidence under section 79 opinion have not been met and therefore the extracts have little to no probative value;

(k)    To rely on extracts of a report which itself is subject to a complaint to the Medical Council of New South Wales, itself subject to an appeal of judicial review proceedings and then implement a permanent stay on the basis of extracts of a report, is prejudicial and a failure to properly exercise the discretion;

(l)    the pleadings in which the extracts of Dr Parmegiani’s report are found, read as a whole, relate to a complaint [Mr Hastwell] made regarding Dr Parmegiani’s report and indicate a number of factual, legal and medical issues which are either inconsistent, misleading or overwhelmingly false.

103    Section 135 of the Evidence Act provides as follows:

135    General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a)    be unfairly prejudicial to a party; or

(b)    be misleading or confusing; or

(c)    cause or result in undue waste of time.

104    This ground is based on a false premise. As already noted, leave was not granted under s 108C of the Evidence Act. The HCCC particulars were admitted for the limited purpose explained at [24]-[26] of the primary judge’s reasons, namely, to show that Kott Gunning had a proper basis to seek to obtain its own psychiatric evidence going to Mr Hastwell’s credibility. For that purpose, the relevant fact was that Dr Parmegiani, a person apparently qualified to give the evidence, had rightly or wrongly opined in a report that Mr Hastwell suffered from a pre-existing delusional disorder, paranoia and persecutory beliefs which caused him to be “increasingly paranoid about other people’s behaviour and motives” and “prone to interpret benign interactions as threats”. Given that the evidence was contained in a pleading signed and filed by Mr Hastwell in the Supreme Court of New South Wales, there is no reason to doubt that Dr Parmegiani had in fact expressed that opinion or that the probative value of the evidence, having regard to the expressly limited purpose for which it was adduced, would be outweighed by any of the considerations in s 135 of the Evidence Act. Further, s 135 was not relied upon or raised by Mr Hastwell at any point in the hearing before the primary judge.

105    Proposed ground 8 would fail.

Proposed ground 9

106    Proposed ground 9 of the proposed grounds of appeal is in the following terms:

Ground 9 – Section 138 Evidence Act 1995 (Cth)

9.    It is contended that [the primary judge] made an error of law by failing to take into account those issues pursuant to s 138 Evidence Act 1995 (Cth) in that he failed to properly exercise his discretion to exclude the [HCCC particulars] on the basis that such evidence was improperly obtained by [Kott Gunning], who is a not a party to those proceedings and such evidence was acquired in contravention to the rules of the Supreme Court of New South Wales and the Harman principle and have been used in contempt of court. In addition, impropriety is evidenced by the absence of consent for inspection and use by either party to those proceedings. Further, such acquisition and use is in breach of [Kott Gunning’s] privilege obligations to [Mr Hastwell]. The proper course would have been for [Kott Gunning] to seek to have privilege waived over Dr Parmegiani’s report which [Kott Gunning] has chosen not to exercise to date.

107    There are many difficulties with this ground. Mr Hastwell asserts that the primary judge failed to have regard to s 138 of the Evidence Act, which provides as follows:

138    Discretion to exclude improperly or illegally obtained evidence

(1)    Evidence that was obtained:

(a)    improperly or in contravention of an Australian law; or

(b)    in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2)    Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a)    did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b)    made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3)    Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a)    the probative value of the evidence; and

(b)    the importance of the evidence in the proceeding; and

(c)    the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d)    the gravity of the impropriety or contravention; and

(e)    whether the impropriety or contravention was deliberate or reckless; and

(f)    whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g)    whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h)    the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Note:    The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.

108    Mr Hastwell argues that the primary judge should have exercised his discretion to exclude the evidence of the HCCC particulars on the basis that Kott Gunning had obtained the evidence improperly and/or in contravention of an Australian law. Mr Hastwell asserts that Kott Gunning obtained the evidence improperly by impermissibly relying on a “without prejudice” communication, without which Kott Gunning would not have known of the HCCC proceedings. It is asserted that the evidence provided to Kott Gunning by the Supreme Court of New South Wales was so provided in contravention of the Supreme Court of New South Wales’ own Practice Note No SC GEN 2 regarding access to that Court’s files. Mr Hastwell also asserts that Kott Gunning’s use of the documents obtained from the Supreme Court of New South Wales was in breach of implied and express undertakings which Kott Gunning is said to have owed to that Court.

109    These matters were not raised in the stay proceedings before the primary judge on 19 December 2019. There can be no error on the part of the primary judge in failing to consider an argument which was never raised. For that reason and for further reasons which follow, the ground cannot succeed. If a court is invited to make a discretionary decision to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge’s attention was drawn to those matters: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 per Gummow ACJ, Kirby, Hayne and Heydon JJ (at [120]), cited in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 per Jagot, Yates and Bromwich JJ (at [48]).

110    In any event, and more importantly, Mr Hastwell had made the same allegations of impropriety in an earlier discovery hearing before the primary judge on 1 August 2019 in an attempt to resist discovery of Dr Parmegiani’s report. The argument that Kott Gunning had obtained extracts from that report in the HCCC particulars improperly by impermissibly relying on without prejudice communications, and that Kott Gunning was under both an implied and express obligation as to their use, were comprehensively rejected by the primary judge in Hastwell (No 3). In doing so, his Honour gave detailed consideration to the scope and content of the implied undertaking by reference to the Australian and English authorities, most notably Hearne v Street [2008] HCA 36; (2008) 235 CLR 125. In particular, his Honour observed from Hearne that the various instances in which it has been held that non-parties are subject to the undertaking “have been broadened into a wider and coherent principle” (Hearne at [109]) and that “the implied undertaking is binding upon anyone into whose hands the discovered documents come, if he knows that they were obtained by way of discovery” (Hearne at [110] citing the dictum of Anderson J in Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 334 335).

111    The primary judge then concluded in Hastwell (No 3) as follows (at [181]-[183]):

181    As a bald proposition, therefore, it would be incorrect to say that the obligation (or implied undertaking) cannot apply to a stranger to the litigation. Nevertheless, I accept that it does not apply to Kott Gunning in the present circumstances. As Hearne v Street confirms, the content of the obligation is that the material cannot be used for any purpose other than the purpose for which the party disclosing the material provided it. That is in the context where the party to litigation has been compelled as part of the court process to make disclosure. It follows that the purpose for which use is authorised is the purpose for which the documents were compelled to be disclosed, typically for use in the litigation.

182    It makes no sense to apply that obligation to a stranger to the litigation who has obtained the material from the court as a result of an application to the court for access to documents on the court file. That is because persons who obtain material that way will almost invariably wish to do so for reasons other than use in the litigation. They are, after all, strangers to the litigation who cannot obtain the documents other than by application to the court. The use to which they want to put the material will be foreign to the purpose of the Harman obligation. That is most obviously so in the frequent cases where the applicant for access is a media organisation which wishes to publish a report based on the material. But it must go for any applicant who is not seeking access merely out of idle interest.

183    The obligation is an obligation to the court: Bourns v Raychem Corporation [No 3] [1999] 1 All ER 908 at [16] (Laddie J), quoted with approval in Hearne v Street at [106]. It is an obligation the court has the right to control and the court can modify or release a person from it: Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 547 at [47] (Mansfield, Kenny and Middleton JJ). It must follow that if a person seeks access to material for use other than in the litigation, and the court grants access to that person, the person is not subject to an obligation to use the material only for the purposes of the litigation.

112    His Honour correctly observed (at [190] in Hastwell (No 3)) that while a court may, in the exercise of its discretion extend the implied undertaking “by analogy” to circumstances outside the discovery process, including perhaps by denying a non-party access to a document, that is not the same as saying that the implied undertaking applies when a court does grant a non-party access to the document. This is particularly so in the present circumstances where Kott Gunning identified itself as the respondent in these proceedings as part of its access request (see Hastwell (No 3) at [172]).

113    In those circumstances, and for the reasons given by the primary judge in Hastwell (No 3), Kott Gunning was not the subject of any implied undertaking in its use of the HCCC particulars obtained by an access request to the New South Wales Supreme Court.

114    Turning to the argument based on Kott Gunning’s purported improper use of “without prejudice” communications, it is clear that the existence of the HCCC proceedings in the Supreme Court of New South Wales only became known to Kott Gunning in the course of a “without prejudice” communication. But that does not preclude Kott Gunning from obtaining material about those proceedings through means independent of the “without prejudice” communication. The “without prejudice” privilege prevents Kott Gunning from adducing evidence of the contents of the “without prejudice” communication. It does not prevent it from using the knowledge gained as a result of the communication in other ways such as to undertake further enquiries to establish independent facts. In Field v Commissioner for Railways (NSW) (1957) 99 CLR 285 (at 291-292), Dixon CJ, Webb, Kitto and Taylor JJ observed:

The law relating to communications without prejudice is of course familiar. As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation … This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct. For example, neither party can use the readiness of the other to negotiate as an implied admission. It is not concerned with objective facts which may be ascertained during the course of negotiations. These may be proved by direct evidence. But it is concerned with the use of the negotiations or what is said in the course of them as evidence by way of admission.

(Emphasis added.)

115    Mr Hastwell sought, and was refused, leave to appeal from Hastwell (No 3) in Hastwell v Kott Gunning (No 4) [2019] FCA 1805 (at [41]-[44]). The primary judge in Hastwell (No 3) also specifically dealt with and rejected Mr Hastwell’s arguments about Kott Gunning’s purported improper acquisition and use of the HCCC particulars. To raise the argument again now is a clear abuse of process, but in any event, Mr Hastwell is estopped from raising those arguments which have previously been determined in Hastwell (No 3) and Hastwell (No 4).

116    In considering whether Mr Hastwell is estopped from raising the arguments from Hastwell (No 3) on this appeal, it is clear that while the discovery proceedings were strictly interlocutory, the decision is still considered to be a final decision “on the merits” of the specific issues raised. This approach has been taken in a number of cases, for example, De Gelder v Rodger [2014] NSWSC 872 per Rothman J (at [130]-[132]) and Armacel Pty Ltd v Smurfit Stone Container Corp [2008] FCA 592 (at [60]-[62]) where Jacobson J said:

60    The second requirement may be satisfied even if the earlier judgment is interlocutory: Castillon v P&O Ports Ltd [2007] QCA 364 at [49]ff. The requirement of finality has been broken down into two separate conditions, namely that the decision must be “final and conclusive” and “on the merits”: The Sennar (No 2) [1985] 1 WLR 490 (HL) at 499.

61    Lord Brandon explained the meaning of “on the merits” in The Sennar (No 2) at 499 as follows:

…a decision on the merits is a decision which establishes certain facts as proved or not in dispute; states what are the relevant principles of law applicable to such facts; and expresses a conclusion with regard to the effect of applying those principles to the factual situation concerned.

62    This passage from Lord Brandon’s speech was referred to with apparent approval in Schnabel v Lui [2002] NSWSC 15 at [112]; Castillon v P&O Ports Ltd at [54]; and Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58 at [66].

117    Additionally to these difficulties, Mr Hastwell’s arguments have no merit for the reasons given by the primary judge in Hastwell (No 3) and having regard to the careful consideration of the authorities cited by his Honour.

118    As to the further argument that the Supreme Court of New South Wales provided the documents to Kott Gunning in contravention of the Court’s Practice Note, also referred to in Hastwell (No 3) (at [184]-[185]), the decision of that Court whether to grant access to a third party involves its own exercise of a broad discretion, the factors of which will vary from case to case. This was noted in New South Wales v Bowdidge (No 2) [2020] NSWSC 159 per Hamill J (at [9]).

119    A fundamental underlying consideration where access to court documents is concerned is the principle of open justice. Although cl 7 of the Practice Note indicated when access to documents would normally be granted to non-parties, it did not provide any binding or fettering guideline as to the exercise of the relevant discretion: see Bowdidge (at [10]). A relevant consideration in this case was that the trial in the HCCC proceedings had concluded and a decision had been reserved. This had also been acknowledged by the primary judge on 1 August 2019 in the course of debate. The decision in Hastwell [2020] NSWSC 728 makes it clear the matter was heard on 16 May 2019, one week before the Supreme Court of New South Wales provided the documents to Kott Gunning. Mr Hastwell’s claim that the matter had not been heard or even commenced is incorrect. Any policy which might preclude allowing access to a non-party prior to the conclusion of proceedings was inapplicable in those circumstances. There was no requirement under the Practice Note for the Supreme Court of New South Wales to notify the parties that an application for access had been made. Section 138 of the Evidence Act does not arise as the evidence was not improperly or illegally obtained. No impropriety or illegality arising from the Supreme Court of New South Wales providing the documents to Kott Gunning after conclusion of the trial has been established.

120    In any event, Mr Hastwell would not be permitted to raise this ground of appeal. Leave to argue a ground of appeal not raised before the primary judge would only be granted if it is expedient and in the interests of justice to do so. The Court may grant leave if some point was not taken below, but which clearly has merit if advanced, and there is no real prejudice to a respondent in permitting it to be agitated. Absent an adequate explanation for the failure to take the point, and where it is of doubtful merit, leave will generally be refused: see VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 (at [48]) and NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 (at [154]-[166]).

121    From as early as the beginning of October 2019, the intention of Kott Gunning to rely on the HCCC particulars in the stay application, including on the issues of credibility was known. Kott Gunning then filed its application for a stay supported by an affidavit from Mr Darbyshire, solicitor, in which he referred to and annexed the HCCC particulars. The issue was also referred to in an outline of submissions filed for Kott Gunning on 20 November 2019 and other exchanges between the parties. No complaint was raised by Mr Hastwell that the HCCC particulars had been improperly obtained and no explanation for not raising that matter has been provided.

122    This also raises the question of the additional evidence Mr Hastwell would need to rely upon in order to advance ground 9 of the appeal. To argue ground 9, he seeks and requires leave to adduce further evidence in the form of correspondence relating to Kott Gunning’s access request. The discretion to receive further evidence must be exercised judicially and in the interests of justice. Section 27 of the Federal Court Act provides as follows:

27    Evidence on appeal

In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:

(a)    on affidavit; or

(b)    by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or

(c)    by oral examination before the Court or a Judge; or

(d)    otherwise in accordance with section 46.

123    Section 27 is not intended to obliterate the distinction between original and appellate jurisdiction. The proper role of an appellate court under s 25 of the Federal Court Act is ordinarily to correct error. The further evidence would not have produced a different result, whether or not it was available at the original hearing and whether or not it could have been obtained with reasonable diligence. The argument pertaining to the misuse of the document is entirely misplaced.

124    Proposed ground 9 would not succeed and Mr Hastwell is not permitted to advance it, nor adduce fresh evidence to support it.

Proposed grounds 10, 13 and 14

125    It is convenient to deal with proposed grounds 10, 13 and 14 together. Each of these grounds is accompanied by lengthy particulars, much of which have already been comprehensively covered by the preceding grounds. Indeed, proposed ground 10 on its face appears to be a reformulation of ground 1 that draws together Mr Hastwell’s arguments under the other grounds:

Ground 10 – Permanently staying proceedings is not a just determination of the interlocutory application

10.    His Honour erred in law by ordering a permanent stay of proceedings as a just determination of the application if [Mr Hastwell] did not consent to being medically examined at the request of [Kott Gunning] because:

(a)    His Honour has not properly considered rules of evidence including ss 75, 79, 108C, 135, 138 & 192 of Evidence Act 1995 (Cth);

(b)    His Honour has referred to Dr Parmegiani and his report throughout his findings which has tainted the whole judgment;

(c)    the court should be more open to [Mr Hastwell’s] hesitancy in being medically examined at the request of [Kott Gunning] given [Mr Hastwell’s] claims that [Kott Gunning] has interfered in the medical process on a number of occasions by unethically approaching treating doctors and psychologists, to date;

(d)    [Kott Gunning] failed to explain its associations with Dr Tony Mander considering [Kott Gunning’s] dominance within the medico-legal field;

(e)    [Kott Gunning] failed to disclose its proposed instructions to be put to any medico-legal practitioner nominated by [Kott Gunning] because it is inappropriate for [Kott Gunning] to include its own witness testimony in instructions if [Mr Hastwell] is to be assessed regarding the effects of [Kott Gunning’s] treatment of him;

(f)    it is a factual error to say that [Mr Hastwell] simply refused to be medically examined when [Mr Hastwell] gave a number of reasons why he would not consent to being medically examined and it was [Kott Gunning’s] refusal to even consider addressing those objections;

(g)    with regards Dr Parmegiani’s report, it is open for [Kott Gunning] to seek to have privilege waived, which [Kott Gunning] has chosen not to exercise to date;

(h)    [Mr Hastwell] only became aware of issues regarding credibility and s 108C Evidence Act 1995 (Cth) on the date of hearing and it would be prejudicial to [Mr Hastwell] to have extracts of Dr Parmegiani’s report included with any instructions to Dr Mander or any other medico-legal professional because that would be prejudicial and misleading. Further, it is inappropriate to ask a medico-legal doctor on whether [Mr Hastwell] has been truthful based on s 108C Evidence Act 1995 (Cth), or at all.;

(i)    no consideration was given by [Kott Gunning] to who would pay for any medical consultation and report;

(j)    [Kott Gunning] must merely disprove the facts that [Mr Hastwell] says gave rise to his (exacerbated) anxiety and depression and therefore a medical examination at the request of [Kott Gunning] is not necessary;

(k)    permanently staying proceedings is a disproportionate way to resolve this dispute. The court has the power to manage this dispute more equitably, particularly considering the claim arises under the [AHRC Act].

126    Proposed grounds 13 and 14 are more specifically directed to the primary judge’s characterisation of Mr Hastwell’s conduct as a “refusal” to be medically examined by Dr Mander (Kott Gunning’s nominated psychiatrist). He says the primary judge failed to take into account the “very real possibility” of an apprehension of bias or conflict in Kott Gunning instructing Dr Mander given Kott Gunning’s dominance in the medico-legal field in Perth. He says his objections to being examined by Dr Mander should have been held to be reasonable, while Kott Gunning’s conduct has been unreasonable. In this regard, Mr Hastwell repeats his concerns about the specific instructions Kott Gunning would give to Dr Mander, including questions about the factual scenario that Dr Mander would be given since Kott Gunning deny that most of the events took place and need only disprove them. Significant concerns are also expressed about the possibility that extracts from Dr Parmegiani’s report could be used to instruct Dr Mander. Each of these strands culminate in the submission that it was an error for the primary judge to find that Mr Hastwell simply “refused to submit” to an examination and that the order of a permanent stay was not a just determination of the proceedings.

127    It is important to recognise that whether to order a stay and whether a stay should be “permanent” was in each instance a discretionary decision. It is not enough, therefore, that an appellate court would consider that if it had been in the position of the primary judge it would have taken the different course. There must have been some error described as a House v King error (House v The King (1936) 55 CLR 499 (at 504)) as discussed by the Full Court (Jagot, Yates and Bromwich JJ) in Reckitt Benckiser (at [47]-[53]):

47    The High Court’s statement in House v The King (1936) 55 CLR 499 at 504-505 is that:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

48    In Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission [2016] NSWCA 298, Leeming JA, with whom McColl and Gleeson JJA agreed, said:

[51] Two things of present importance emerge from the reasons of Gummow ACJ, Kirby, Hayne and Heydon JJ in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar (2008) 237 CLR 66; [2008] HCA 42. The first is the proposition accepted at [120] that:

when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge’s attention was drawn to those matters, at least unless they are fundamental and obvious.

[52] The second is the explanation of the nature of the “orthodox approach to appellate intervention in relation to discretionary decisions” described at [137]–[138]. There it was pointed out that the expression “balancing exercise” is one to be employed with care, and that where (as in the present case) no statute mandates that particular weight be given to any one factor:

[T]he question of what weight the relevant factors should be given or what balance should be struck among them is for the person on whom the discretion is conferred, provided no error of law is made, no error of fact is made, all material considerations are taken into account and no irrelevant considerations are taken into account, subject to the possibility of appellate intervention if there is a plain injustice suggesting the existence of one of the four errors just described even though its nature may not be discoverable, or if there is present what has come to be known as ‘Wednesbury unreasonableness’.

[53] The same passage confirms that it is wrong to apply the words from House v R in isolation, as if they were not qualified by an absence of reasons explaining how the decision was reached. Park Trent’s selective statement of the principle upon which it relied has a tendency to dilute the test. The entire relevant passage from House v King, which was restated in the passage from Macedonian Orthodox Community Church St [P]etka Inc v His Eminence Petar, was as follows:

It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Of course, that is not the present case, where the reasons of the primary judge are elaborate.

49    This is not to say that elaborate reasons are immune from appellate review. In the absence of specific error, the outcome reached either will or will not be one which was reasonably open. If not reasonably open, elaborate reasons will not protect the result from appellate intervention.

50    Accordingly, error is not involved merely because an appeal court would have reached a different conclusion.

51    Error may be specific, in the sense of apparent on the face of the reasons given, such as by application of a wrong principle in reaching the result (which may be evident by the primary judge addressing the wrong question), reaching the result by taking into account something that should not have been considered or by failing to take into account something that should have been considered, or by making a determinative error on the facts in the sense that the factual finding was not properly available to be taken into account in a way that affected the outcome.

52    Alternatively, error may be inferred from a result that cannot have been arrived at without some kind of operative error. The influence of the reasons given for the result arrived at on this process will vary. Reasons are not to be ignored, but nor do they necessarily confine in a rigid or inflexible way the scope of the appellate inquiry. It may be legitimate to have regard to what was said and not said in order to identify how the asserted erroneous result was reached. But for error to be inferred from the result, the result must be one which was not open on the evidence or facts found or agreed.

53    In all cases of specific error, the error must have either caused or materially contributed to the result. An error which has not in some material way affected the outcome will ordinarily result in the appeal court declining to intervene, at least as to the result.

128    A consideration of these principles makes clear that the primary judge did not misdirect himself. His Honour referred to a number of authorities for the proposition that a court can order a stay if the conduct of the plaintiff in refusing a reasonable request for a medical examination is such as to prevent the just determination of the cause. In addition to the authorities cited by the primary judge, there is also support to the same effect to be found in Prescott v Bulldog Tools Ltd [1981] 3 All ER 869 (at 874 and 876); Campbell v Biernacki (2009) 19 Tas R 345 (at [20]-[26]) which suggests that a stay of proceedings should be ordered and Furesh v Schor (2013) 45 WAR 546, where the Court of Appeal of the Supreme Court of Western Australia said (at  [72]-[74]):

72    The distinction between positively ordering a plaintiff to submit to a medical examination, and directing that the action be stayed unless and until the plaintiff submits to a medical examination, was referred to by Basten JA (Giles JA agreeing), albeit in obiter observations, in Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council (2009) 230 FLR 336 at [79]:

“Where a plaintiff sues for damages for personal injuries, it is usual for the defendant to require that the plaintiff be examined by its medical practitioners. Rules of court now provide that where the physical or mental condition of a party is relevant to a matter in issue, another party may seek to have the first party examined by its medical practitioners and, where the first party fails to comply with such a reasonable request, the court may dismiss the proceedings: Uniform Civil Procedure Rules 2005  (NSW) (“the UCPR”), Pt 23, rr 23.1 and 23.9. Before such rules were promulgated, the court had no power to order anyone to submit to a medical examination, but could direct that an action be stayed unless the plaintiff submitted to examination by doctors nominated by the defendant: see Baugh v Delta Water Fittings Ltd [1971] 1 WLR 1295; Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 at 71 (Lord Denning MR). The court retains such a power.”

(Emphasis added [in the original].)

73    Edmeades v Thames Board Mills Ltd [1969] 2 QB 67, referred to in both Starr v National Coal Board and Kurnell v Randwick, was a case in which an employee brought an action against his employer for injuries sustained at work. Liability was admitted and the only question was as to the assessment of damages. The report from the employee’s doctor contained particulars of an injury that had not been made in the statement of claim. The employer applied for a stay of proceedings until the employee submitted to a further medical examination by one of six named doctors. The Court of Appeal granted the stay. Lord Denning MR (Davies and Widgery LJJ agreeing) said (at 71):

“I do not think legislation is necessary. This court has ample jurisdiction to grant a stay whenever it is just and reasonable to do so. It can, therefore, order a stay if the conduct of the plaintiff in refusing a reasonable request is such as to prevent the just determination of the cause. The question in this case is simply whether the request was reasonable or not.”

74    Widgery LJ also observed (at 72-73):

“I can see the objections that would be raised if it were sought to give the court power to make a direct order for medical examination with, presumably, power to commit the plaintiff for contempt if he refused. But none of those objections, to my mind, arise where it is sought to give the plaintiff a right to elect between not going on with his action, or submitting himself to medical examination, especially where his refusal to be examined is based on no reason and will result in the defendants being unable to prepare their defence, and will thus result in the court being unable to do justice towards the defendants.”

(Italic emphasis in the original, bold added.)

129    As the primary judge noted, each case depends on its own facts. His Honour carefully considered each of the reasons which Mr Hastwell gave at the hearing for refusing to be examined and, correctly, rejected those reasons. Indeed, in the course of oral submissions on appeal, Mr Hastwell accepted that his Honour did accurately record in the primary judgment each of Mr Hastwell’s objections to being medically examined. It cannot be said that the primary judge overlooked or mistook any of Mr Hastwell’s objections. To the contrary, his Honour did recognise the importance of a litigant’s right to personal liberty at [32]-[35] and [40] which have been set out above, and at [43], where his Honour said:

43    As for the broader argument about human rights, in McKinnon v Commonwealth of Australia [1999] FCA 717 at [6] Branson J (Finn and Emmett JJ agreeing) described as ‘entirely without merit’ a contention that the requirement for the applicant to attend reasonably required medical examinations was an infringement of his ‘substantive right to civil liberty’. But, as I have indicated, this does not mean that the law concerning orders of the kind sought here disregards the importance of that right. There is, however, another right involved. The question can be framed in a different way: should a respondent be exposed to the possibility of a compulsory order of the court requiring it to provide remedies to an applicant without giving that respondent the opportunity to defend itself on the basis of such relevant and admissible evidence as it chooses to advance?

130    However, the primary judge also recognised that there is another right involved, being the right of a litigant to defend itself, including by choosing and calling its own expert witnesses. Those passages of his Honour’s reasons (at [40], [43] and [59]) are also set out above and at [64], his Honour said:

Here, there was nothing before the court capable of establishing that Mr Hastwell’s apprehensions were reasonable. No evidence was put before me of Dr Mander’s experience and particular qualifications, but Mr Hastwell did not take issue with the description of him in Kott Gunning’s letter of 24 July 2019 as a consultant psychiatrist. Justice requires that a defendant (or plaintiff) have the ability and right to choose a medical witness in whose … forensic ability and expertise it has confidence: Gray v Hopcroft [2000] QCA 144 at [15] (Ambrose J, Thomas JA and Helman J agreeing). I do not accept Mr Hastwell’s stated objections to Dr Mander in particular.

131    The primary judge was correct to describe this as being “fundamental to a fair trial”. His Honour was also correct to conclude (at [72]-[73]) that the trial would not be fair unless Kott Gunning was able to have Mr Hastwell examined in order to adduce its own medical evidence and that a stay was therefore inevitable. Mr Hastwell still proposes relying upon his own expert evidence at trial, which includes the opinion of an occupational physician (as distinct from a psychiatrist) that, as a result of a four hour interview, she was not under the impression that Mr Hastwell was paranoid. That view may be entirely correct. It may not be. That is not the issue. It is fundamental that Kott Gunning be able to have its own expert evidence and it is quite unrealistic to suggest that expert evidence of a psychiatric nature on such topics could be given without the benefit of interviewing the person concerned. If it was necessary for Mr Hastwell to be so interviewed to adduce his own evidence, it is reasonable to expect the same or similar opportunity to be afforded to Kott Gunning, especially having regard to the nature of the allegations and the availability of other evidence providing a reasonable basis for a request for Mr Hastwell to submit to an examination.

132    Having addressed each of these objections in detail, and in relation to ground 13 specifically, it is plain that the primary judge’s assessment of Mr Hastwell’s conduct as a “flat refusal” to being medically examined does not have the meaning which Mr Hastwell seeks to import. His Honour was not suggesting that Mr Hastwell did not have reasons, compelling or otherwise, for resisting examination. Rather, his Honour was accurately describing Mr Hastwell’s in-principle refusal to being examined by Dr Mander or any practitioner instructed by Kott Gunning on any terms. Mr Hastwell made it plain in the hearing before the primary judge that his case is that any problems Kott Gunning has with Mr Hastwell’s own medical evidence can be discredited by them in submissions and cross-examination such that there is simply no need for them to adduce their own evidence. As we, and the primary judge have sought to explain, this position is in direct contradiction to the weight of principle that it is a fundamental right of a defendant that they be permitted to adduce relevant and admissible evidence in defence of the claim made against them. Such a right is essential to the just determination of proceedings.

133    As to the form of the primary judge’s orders, although the stay is described as being “permanent”, the reality is that any stay may be revoked for good reason. A permanent stay should only be granted if it is the only fair and practical way of ensuring justice between the parties as noted in Rozenblit v Vainer (2018) 262 CLR 478 (at [34] and [100] and [75]-[76]). At [75]-[81], the primary judge carefully considered these factors, saying as follows:

The form of the order

75    There are three questions about the form of the order which need to be addressed.

76    The first, recognising that a comprehensive stay is a ‘somewhat strong course’, is whether justice can be achieved by taking the lesser course of staying the proceeding only in so far as it concerns the alleged anxiety and depression, and preventing Mr Hastwell from adducing medical or psychiatric evidence, including the report of Dr Hollo, unless he consents to being examined by a practitioner nominated by Kott Gunning. Kott Gunning’s interlocutory application raised a similar order as an alternative to the comprehensive stay which it primarily seeks, although it did not pursue that alternative at the hearing.

77    In any event I will not make an alternative order of that kind. That is for three reasons. The first reason is that it will not remove the question of Mr Hastwell’s psychiatric condition as an issue raised on the pleadings. The second reason, which is related to the first, is that it would require the parties and the court to proceed with a kind of truncated trial on the other issues only. There would be an air of artificiality, to say the least, about a trial which avoids the question of what consequences the acts of Kott Gunning and their staff had for Mr Hastwell’s mental health, if those acts are established. It would not be possible to determine how those acts affected his earning capacity. The court would be determining only some of the true issues in the case, and on the basis of limited evidence. The resulting remedies, if awarded, would lack the practical usefulness of an award of damages. The whole process would be manifestly unsatisfactory.

78    The third reason I have rejected the possibility of, in effect, a stay of part of the action, arises from the report of Dr Parmegiani. Kott Gunning wish to have Mr Hastwell medically examined so that it can adduce evidence as to whether his psychiatric condition affects his ability to give credible evidence. That potentially affects the whole of Mr Hastwell’s application. Determination of the many factual issues as to whether the alleged unlawful conduct occurred will depend to a large extent on Mr Hastwell’s evidence. That is another reason why it would not be appropriate to make orders which merely prevent Mr Hastwell from adducing his own medical evidence.

79    The second question about the form of the order was raised by a submission on behalf of Kott Gunning that the stay should be a permanent stay. Senior counsel expanded on that by saying that it would be unfair to grant a stay which only applies unless and until Mr Hastwell agrees to attend a medical examination. He has been emphatic that he will not consent to the examination. A temporary stay ‘would leave the matter in limbo’ and leave it open to Mr Hastwell to seek to revive the matter without notice years in the future. It was submitted that would be unfair to Kott Gunning, which is comprised of a small number of equity partners, as well as to the large number of witnesses who may need to be called. Also, the longer the matter is unresolved, the more the memories of the large number of witnesses will fade.

80    I accept that these consequences would be left open by any temporary or conditional stay of the sort that Kott Gunning oppose. I also accept that they are consequences which should be avoided. I am satisfied that it would not be appropriate to stay the proceeding pending any particular development indicating that Mr Hastwell has relented in his opposition to being examined by a psychiatrist. I will therefore not make the proposed stay temporary or conditional. It may be that it is a moot question whether the stay is properly described as a permanent stay: see Brookfield v Davey Products Pty Ltd [2001] FCA 104 at [27] Mansfield J. However that terminology is commonly used, and in my view is an appropriate recognition of the principle that it is desirable that litigation, once apparently finished, ought not lightly be reopened: see Lambert v Mainland Market Deliveries Ltd [1977] 1 WLR 825 at 833.

81    The third question about the form of the order arises because the minute of proposed orders which Kott Gunning submitted contemplates that the stay will take effect unless Mr Hastwell consents to a medical examination within 14 days and subsequently cooperates. That would have the effect of a self-executing order in circumstances where there would be ample room for disagreement about whether the conditions for it to execute have been fulfilled. In my view it is appropriate, instead, simply to order that the proceeding be stayed after the lapse of a period of time which permits Mr Hastwell to consider his position and, if he chooses, to agree to a medical examination. Express liberty to apply before that time expires should be given. Then, if Mr Hastwell does take steps to indicate that he will submit to the examination, he may apply with suitable evidence, for the stay order to be vacated, or for the time before it takes effect to be extended, or such other order as is appropriate in the circumstances. While it is often undesirable for the court to undertake the level of supervision that may entail, in my view that is preferable to an order which operates inflexibly in the absence of ‘cooperation’, a word which is unavoidably indeterminate. Given the potentially serious consequences for Mr Hastwell, the period before the stay takes effect will be 28 days.

134    The primary judge was right to conclude that a permanent stay was appropriate for the reasons his Honour gave. Mr Hastwell had had 10 months to consider his position. The proceedings involved events between 2013 and April 2015. While much of the focus has been on Mr Hastwell, it must also be recalled that there are individuals comprising a partnership in Kott Gunning against whom serious allegations were made. It would have been unfair to those persons and the large number of witnesses to allow the matter to remain in limbo, leaving it open to Mr Hastwell to revive the matter if and when he chose to agree to be examined. To do so would be contrary to the overarching purpose of the civil practice and procedure provisions to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.

135    Moreover, the primary judge did give Mr Hastwell a final opportunity to agree to be examined, which he did not take. Mr Hastwell contends that the primary judge should have “case managed” the situation. Attempts to do so over a 10 month period were clearly to no avail. Mr Hastwell was at all times resolute in his refusal to be examined. In particular, he refused to be examined if any aspect of the examination would involve any expression of views as to his reliability or credibility. It was plain from other exchanges that Mr Hastwell would refuse to be examined by any psychiatrist if that topic was to be in issue.

136    Regrettably, Mr Hastwell’s submissions on these three grounds simply reiterated the objections to being examined that he had expressed to the primary judge. They disclosed no reason why the primary judge’s discretion miscarried and no appellable error on this Honour’s part.

137    Proposed grounds 10, 13 and 14 would fail.

Proposed grounds 11 and 12

138    It is convenient to deal with these proposed grounds together as they both assert (misguidedly) apprehended bias. These grounds are as follows:

Ground 11 – Apprehended bias – prejudgment

11.    It is contended that [the primary judge] in the forming of his decision breached the rules of natural justice on the basis that an apprehension of bias exists because His Honour prejudged the claim based on extracts of Dr Parmegiani’s report. By relying on extracts of an opinion of Dr Parmegiani, His Honour’s decision has not been formed with an impartial mind by focusing on those extracts and Dr Parmegiani qualifications as opposed to the legal and factual issues involved with its admission. A fair minded and informed observer might therefore conclude that His Honour might not have been impartial and therefore failed to bring an independent mind to the decision-making process by prejudging the veracity of [Mr Hastwell’s] claim.

Ground 12 –Apprehended bias – failure to bring independent mind to decision-making process with respect to truthfulness

12.    It is contended that [the primary judge] in the forming of his decision breached the rules of natural justice on the basis of having a preconceived idea about [Mr Hastwell’s] trustworthiness. By relying on extracts of an opinion of Dr Parmegiani His Honour had already formed a view of [Mr Hastwell’s] credibility thereby influencing the decision-making process to have [Mr Hastwell] medically examined and to permanently stay proceedings. The public might therefore entertain a reasonable apprehension that His Honour might not have brought an impartial and unprejudiced mind in forming his judgment in reliance upon extracts of that report, which itself is not in evidence. Instead of addressing the legal issues as to the admissibility of those extracts and the prejudice it might present to [Mr Hastwell] as well as to the proceedings, His Honour formed a view regarding [Mr Hastwell’s] truthfulness, thereby making orders to permanently stay proceedings if consent was not forthcoming by [Mr Hastwell] to being medically examined for that very purpose.

139    In support of these grounds, Mr Hastwell submits:

…

29.    A claim for apprehended bias does not require such strong or clear evidence: The question is “one of possibility (real and not remote), not probability”: Ebner - v- Official Trustee (2000) 205 CLR 337 at 345 per Gleeson, McHugh, Gummow, and Hayne JJ, Callinan J agreeing. Webb-v-R (1994) 181 CLR 41 and Ebner establish that the Australian test is to be framed not in terms of proving (in diminishing severity) actual bias or a “real danger”, “substantial likelihood”, “real likelihood” or “probability” of bias but in terms of proving a “reasonable apprehension” of bias. A court need only be satisfied that a fair minded and informed observer might conclude that the decision-maker might not be impartial or approach the issues with an open mind. “Not only must justice be done; it must also manifestly and undoubtedly be seen to be done.”: R - v- Sussex, ex parte McCarthy (1924) 1 KB 256 as per Lord Hewart CJ.. In [the primary judge’s] judgment he expresses the following, “... Dr Parmegiani appears to have reached conclusions about Mr Hastwell’s psychiatric condition which, if correct, would potentially undermine the credibility of the claims that Mr Hastwell makes in these proceedings.” at [19], or, “ ... it is to show that Kott Gunning have a proper basis to seek to obtain psychiatric evidence going to Mr Hastwell’s credibility.” at [25}, or, “It establishes that Kott Gunning’s position is not based on mere conjecture; a person apparently qualified to reach the opinion apparently expressed.” at [26], or, “ ... the defendants put forward the name of an experienced and well qualified doctor who on the face of it appears unobjectionable .. ... “at [58], or, “ ... what is known about Dr Parmegiani’s report gives Kott Gunning a proper basis to seek psychiatric evidence which may go to Mr Hastwell’s credibility.” at [73].

30.    It is submitted that a reasonably minded person might conclude that His Honour might not have brought an independent mind, not only with respect to the admission of extracts of Dr Parmegiani’s report but in the entire decision-making process: Huluba -v- Minister for Immigration & Ethnic Affairs (1995) 59 FCR 518 Beazley J at 530 and LVR (WA) Pty Ltd -v- Administartive [sic] Appeals Tribunal (2012) 203 FCR 166 at [5]; Johnson-v-Johnson (2000] HCA 48 at [12] - [18]. Such comments are likely to convey to a reasonable and intelligent lay observer that the impression of bias had been made. This type of apprehended bias was considered by the High Court in Vakauta v Kelly (1989) 167 CLR 568 at page 572-573, Brennan, Deane, Gaudron JJ at [4] - [8]. Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR 248, at pp 258-263, at [13] - [19] and applied in Livesey v. New South Wales Bar Association (1983) 151 CLR 288, at pp 293-294 at [5] - [7].

140    It is completely incorrect that the primary judge expressed any opinion as to the merits of Mr Hastwell’s claim or as to his truthfulness or credibility. It is impossible to read his Honour’s reasoning in that way. The HCCC particulars were admitted and relied on by the primary judge for the limited purpose only, as explained at [25]-[26] of his Honour’s reasons which have been previously set out but warrant repeating here:

25    But that is not the purpose for which Kott Gunning have adduced the evidence of the contents of the report. The purpose is a more limited one; it is to show that Kott Gunning have a proper basis to seek to obtain psychiatric evidence going to Mr Hastwell’s credibility. That any applicant would be sensitive about the possibility of evidence of this kind being adduced is understandable. If a respondent were to require an applicant to submit to psychiatric examination based on nothing more than speculation or conjecture that the applicant’s evidence might be affected by a psychiatric condition, that could well be judged not to be a reasonable request which engages the power to order a stay.

26    The purpose of adducing evidence about Dr Parmegiani’s opinions is no more than to dispel that concern. It establishes that Kott Gunning’s position is not based on mere conjecture; a person apparently qualified to reach the opinion has apparently expressed it. The court does not have to reach a view on whether the views Dr Parmegiani has apparently expressed are correct or might be understood differently in their full context in order to find that they provide a reasonable basis for the line of inquiry Kott Gunning wish to take. So Kott Gunning are not relying on the evidence as to Dr Parmegiani’s opinion in order to prove the truth of the opinion. It is the holding of the opinion (right or wrong) by a person apparently qualified to express it that is the fact proven. This use of the evidence does not infringe the opinion rule in s 76 of the Evidence Act, and so does not require proof of the matters required to establish the exception for expert opinion in s 79.

141    It is clear from these observations that the primary judge had not formed a view as to the correctness or otherwise of Dr Parmegiani’s report.

142    As to proposed ground 12, at no time did the primary judge express any view whatsoever concerning a finding as to Mr Hastwell’s credibility. In relation to s 108C of the Evidence Act, on which Mr Hastwell relies, the primary judge expressly referred (at [73]) to the Court’s discretion to withhold leave to adduce credibility evidence under that section. At [73] his Honour said as follows:

In addition, what is known about Dr Parmegiani’s report gives Kott Gunning a proper basis to seek psychiatric evidence which may go to Mr Hastwell’s credibility. It is necessary for there to be a fair trial for Kott Gunning to have the opportunity to seek to adduce expert evidence that is truly probative, in the sense that it could substantially affect the court’s assessment of Mr Hastwell’s credibility. The discretion of the court under s 108C(1)(c) to withhold leave to adduce such evidence ensures that the opportunity cannot be abused.

143    There is nothing of substance in these grounds which goes beyond the matters already raised and dealt with under the previous grounds in relation to the primary judge’s treatment of the extracts of Dr Parmegiani’s report from the HCCC particulars. Proposed grounds 11 and 12 simply reformulate these arguments as allegations of apprehended bias against the primary judge. For all the reasons expressed herein, his Honour’s reasons were detailed, careful and considered, and responded comprehensively to each of Mr Hastwell’s arguments and provided sound reasons for rejecting them. Any suggestion of apprehended bias or otherwise is unfounded.

144    These two proposed grounds would fail.

CONCLUSION

145    None of the proposed grounds of appeal would succeed. No injustice has been occasioned. Leave to appeal on all grounds will be refused with costs. Leave to admit fresh evidence in support of proposed ground 9 is also refused for reasons indicated.

Associate:

Dated:    13 May 2021