Mitchelmore JA, Stern JA, and Basten AJA
Summary
The New South Wales Court of Appeal clarified a plaintiff’s right to impose conditions on a psychiatric assessment arranged by a defendant, and specifically, the right to record that assessment.
Background Facts
Mr Hollingsworth brought proceedings against the State of New South Wales for false imprisonment, assault, and battery, alleging that his arrest and detention by police had aggravated his pre-existing post-traumatic stress disorder (PTSD).
The State sought an order requiring Mr Hollingsworth to undergo a psychiatric assessment with its appointed expert. Mr Hollingsworth refused to attend unless he was permitted to make an audio recording of the assessment. The State’s expert psychiatrists did not consent to this condition.
At first instance, the primary judge ordered that the State’s psychiatrist was required to allow Mr Hollingsworth to record the psychiatric assessment.
Issue on Appeal
Whether the court had power to direct a defendant's expert to permit an audio or audiovisual recording of a psychiatric assessment as a condition of the plaintiff’s attendance.
Whether denying the plaintiff an opportunity to record the assessment would be discriminatory or contrary to law.
Decision
The Court of Appeal held that the Uniform Civil Procedure Rules 2005 (NSW) did not empower the court to order an expert to permit the recording of a psychiatric assessment. The Court determined that the plaintiff had no legal right to make a personal recording of the examination and that the primary judge erred in treating the refusal to allow recording as unlawful discrimination.
The appeal was allowed, the initial order was set aside, and the Court directed Mr Hollingsworth to attend a psychiatric assessment with the State’s chosen expert without the recording condition.
Implications
The case confirmed that courts will not impose conditions on defendant-appointed expert assessments (such as permitting recordings) unless expressly permitted by legislation or procedural rules. A party’s right to select and instruct their own expert for medico-legal purposes is affirmed, and no implied plaintiff “right” to record the assessment exists in this context.