FEDERAL COURT OF AUSTRALIA

PRACTICE & PROCEDURE – whether Court has power to grant a stay where demonstrated that a reasonable request to attend a medical examination has not been complied with – claim that attendance would cause some deleterious effect to the Applicant – whether Court has power to order attendance for medical examination

GRANT McKINNON v

COMMONWEALTH OF AUSTRALIA & ORS

NG 518 of 1996

HILL J

SYDNEY

27 AUGUST 1998

THE COURT ORDERS THAT:

1.      Each of the Respondents, desiring so to do, advise Mr McKinnon on or before 4:00pm on Monday 31 August 1998 of the names of the doctors they wish him to be examined by, the place at which the examination is to take place, the time and date at which it is to take place and whether the place is near to or in the vicinity of a dental surgery.

2.      Should Mr McKinnon agree to participate in those appointments, he advise each of the Respondents on or before 4:00pm on 4 September 1998.

3.      Should Mr McKinnon wish to decline to attend all or any of the appointments in question, he file an affidavit or medical report and serve it upon each of the Respondents setting out the reasons why his attendance would have some health impact on him by 11 September 1998.  If he is unable to do so, he should at least indicate to the parties that he proposes to call medical evidence.

4.      Should an affidavit or medical report be filed by Mr McKinnon, the Respondents notify Mr McKinnon on or before 14 September 1998 whether or not they require the doctor to attend for the purposes of cross-examination.

5.      The matter be stood over until 9:00am on 16 September 1998.  If the doctor is to be cross-examined, it may be conducted by telephone conference.

6.      The costs of today be reserved.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

Three of the four Respondents moved the Court today for orders that the application brought by Mr McKinnon against them be stayed.  The remaining respondent filed its motion only today and since Mr McKinnon has not had the opportunity to respond to the affidavit evidence in support of that motion, I have stood it over to a later date.

Mr McKinnon's case put in most simplistic form is that he has suffered damage by virtue of medical conditions alleged to flow from mercury poisoning from fillings which he had over a period of years.  In essence, for Mr McKinnon to succeed he would need to show that he suffered from the medical conditions which he claims to suffer from and that these were brought about, or some of them were brought about, as a result of the mercury poisoning which he claimed flowed from the use of amalgam dental fillings. 

Over a considerable period of time now, attempts have been made on the part of the Respondents to have Mr McKinnon attend upon specialists to be examined.

Mr McKinnon has been at some stages legally represented and at others not.  His current solicitor sought leave this morning to be excused leaving Mr McKinnon in a not particularly advantageous position having to appear on his own behalf.  It is unnecessary for me to recount in detail the evidence dealing with the attempts to have Mr McKinnon attend at medical examinations.  It suffices to say that he did attend an examination arranged for him with Dr Westmore but claims that not only were there some features of that interview which were unsatisfactory but also his health was affected because Dr Westmore's rooms were near a dental surgery from which mercury vapours may have leaked.

In essence, Mr McKinnon says he would be prepared to attend a medical examination closer to the central coast where he lives, at least as long as the medical practitioner in question was not adjacent to or in the immediate vicinity of a dental surgery.  He asserts that attendance in Sydney has a deleterious effect for another reason, namely that the existence of lead toxicity aggravates his condition arising from the mercury poisoning which he claims to suffer from.

It is not suggested by any of the Respondents that the Court should make itself an order directing Mr McKinnon to attend.  Indeed, at least to some extent it seems to be accepted that the Court would have itself no specific power to compel Mr McKinnon to attend.  Indeed, if the Court was said to have such an inherent power, it might raise questions of civil rights which need not detain us here.  They have been raised in other courts in other countries.  However, it seems to be clear enough law, at least in a jurisdiction which has no specific power to compel attendance at an examination (cf. the rules of the Supreme Court of New South Wales where there are rules governing such matters) 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.

It is not of itself a reason why there should be refusal to attend that the Applicant attends in person or that he does so without the advantage of having his own doctor attend.  It is unnecessary for me to canvass what may constitute a reason which would suffice for an applicant not to attend an examination.  It is clear enough that it would be an appropriate reason if the Applicant could demonstrate that there was some medical reason why attendance could be deleterious to him.  This is what Mr McKinnon asserts but, being unrepresented today, makes that assertion unable to be tested.  He says that he had obtained an affidavit from a doctor which his previous solicitor holds but that it was not available to him today nor, in any event, is it presumably in a final stage.  He has attempted to ascertain the availability of his medical practitioner to give evidence but has been unable to do that.  In the meantime, I have been advised that various doctors are available in periods commencing from 9 September and ranging through to 1 October in the event that Mr McKinnon is prepared to participate in examinations.

In an endeavour to, on the one hand maintain, but only for a short period, Mr McKinnon's position, but on the other hand to bring the matter to some finality which is clearly necessary given the length of time that has passed, I propose to direct each of the Respondents to advise Mr McKinnon no later than Monday, 31 August at 4.00 pm of the times at which and places at which the appointments which they seek may take place.  They should also indicate to him whether the place at which the appointment is to take place is near or in the immediate vicinity of a dental surgery.

Mr McKinnon has two options thereafter.  He can if he wishes attend the medical appointments in which case the question will become irrelevant.  In the alternative, he can seek to persuade me on medical evidence that there is a reason, a medical reason, why attendance on the doctors specified would be deleterious to him thereby providing a reasonable excuse why he need not attend those particular examinations.  Should he adopt the second course, he should file an affidavit by a medical practitioner or other expert of his choice no later than Friday, 11 September and I will on Wednesday, 16 September when the matter comes again before me consider any medical evidence that Mr McKinnon may seek to file. 

If the Respondents wish to have the medical practitioner cross-examined, they must advise Mr McKinnon no later than midday on 14 September so that he can make arrangements for the medical practitioner to be present.  I am conscious that Mr McKinnon is not legally represented but I do not think that he will suffer any prejudice provided that he is able to produce medical evidence of the kind he suggests.  If he is unable to obtain an affidavit, then it will suffice if he advises the parties that no affidavit can be prepared by him and the name of the medical practitioner in question and then arranges for that practitioner to be here in person to give evidence of the medical problem.

To deal with the orders:

1.      Each of the Respondents, desiring so to do, advise Mr McKinnon on or before 4:00pm on Monday 31 August 1998 of the names of the doctors they wish him to be examined by, the place at which the examination is to take place, the time and date at which it is to take place and whether the place is near to or in the vicinity of a dental surgery.

2.      Should Mr McKinnon agree to participate in those appointments, he advise each of the Respondents on or before 4:00pm on 4 September 1998.

3.      Should Mr McKinnon wish to decline to attend all or any of the appointments in question, he file an affidavit or medical report and serve it upon each of the Respondents setting out the reasons why his attendance would have some health impact on him by 11 September 1998.  If he is unable to do so, he should at least indicate to the parties that he proposes to call medical evidence.

4.      Should an affidavit or medical report be filed by Mr McKinnon, the Respondents notify Mr McKinnon on or before 14 September 1998 whether or not they require the doctor to attend for the purposes of cross-examination.

I will reserve the costs for the moment.

Associate:

Dated:                          September 1998