FEDERAL COURT OF AUSTRALIA

Nottage v National Australia Bank Limited [2009] FCA 1571

PRACTICE AND PROCEDURE – whether applicant should be required to attend a medical examination – where applicant served a medical report but does not intend to rely on the report at trial – where no claim for physical or psychological injury – whether in the circumstances applicant should be required to attend a medical examination against his will  

Held: applicant not required to attend a medical examination

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Trade Practices Act 1947 (Cth)

Workers Compensation Act 1987 (NSW)

CARL NOTTAGE v NATIONAL AUSTRALIA BANK LIMITED

NSD 1699 of 2008

JAGOT J

17 DECEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The notice of motion filed in Court on 17 December 2009 be dismissed.

2.         Costs reserved.

3.         Vary Order 3 of the orders made on 24 November 2009 so that the relevant date is 12.00 pm on 23 December 2009.

4.         Vary Order 5 of the orders made on 24 November 2009 so that the relevant date is 1 February 2010.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          This is a notice of motion seeking an order that the applicant attend a medical examination.  The applicant’s claim is one for compensation arising out of alleged breaches of a contract of employment and the Trade Practices Act 1974 (Cth) in connection with the respondent’s termination of the applicant’s employment. 

2                          The respondent seeks an order that the applicant attend a medical examination.  The applicant does not agree to do so.  The following circumstances are relevant.  First, the applicant served a report from a consulting psychologist with respect to the applicant’s current medical condition; the applicant, however, does not intend to rely on this report (see [4] below).  Second, the applicant has given evidence on oath in an affidavit about his feelings concerning and consequential upon the termination of his employment. 

3                          The respondent submits that it should be granted an order that the applicant attend a medical examination because this evidence is potentially relevant in at least three ways.  First, the respondent says that the evidence is potentially relevant to the valuation of the applicant’s claim for the loss of the chance to have continued in employment for the respondent until retiring age.  Second, the respondent says that the evidence is potentially relevant to its defence based on provisions of the Workers Compensation Act 1987 (NSW) and the Safety, Rehabilitation and Compensation Act 1988 (Cth) which preclude claims for damages in respect of an injury sustained by an employee in the course of his or her employment.  Third, the respondent says the evidence is potentially relevant to the question of whether the applicant has mitigated his loss, by seeking or obtaining alternative employment.

4                          The difficulty I have with the application is that the applicant has made no claim in these proceedings for any damages arising from an injury, be that injury physical or psychological.  In circumstances where there is no positive claim by the applicant for any such damage, it does not seem to me that it is a reasonable requirement that, at the suit of the applicant’s former employer, the applicant be required to attend a medical examination.  The mere fact that the employer happens to be in possession of a medical report does not place this matter in any category different from any other application.  This is because the applicant’s counsel has made it clear beyond any doubt that the medical report is not relevant to any of the claims in the proceedings.  It was obtained and served at a time when the applicant was contemplating an amendment to the statement of claim to include a claim for injury.  However, no such claim is to be made in the proceedings and the applicant therefore does not propose to tender the medical report.  

5                          In these circumstances, none of the grounds upon which the respondent said the evidence is potentially relevant arise.  In short, I accept the applicant’s submission that any evidence that is in the applicant’s affidavit about his feelings in respect of the termination of his employment cannot be taken as evidence that he is, in fact, suffering from any form of medical condition or injury and, accordingly, could not be used for that purpose.  In these circumstances, as the proceedings are presently constituted, there is no proper basis upon which I could or would require the applicant to attend a medical examination against his will.

Associate:

Dated:         17 December 2009