Gray v Hopcroft[2000] QCA 144

SUPREME COURT OF QUEENSLAND

1. THOMAS JA:  I agree with the reasons of and orders proposed by Ambrose J.

2. AMBROSE J:  This is an application by a plaintiff for leave to appeal against an interlocutory order made by a chamber judge in the District Court on 4 February 2000.

3. The principle upon which this court will grant leave to appeal against an order of this kind is stated succinctly in the majority judgment in Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Inc and Anor (1981) 148 CLR 170 at 177 in the following terms –

“Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure.  Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task.  Not only must there be error of principle but the decision appealed from must work a substantial injustice to one of the parties.  The opposing view is that such criteria are to be expressed disjunctively.  Cases can be cited in support of both views --.  For ourselves we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria.  The circumstances of different cases are infinitely various we would merely repeat with approval the oft cited statement of Sir Frances Jordan in Re the Will of F B Gilbert (dec.) [1946] 46 SRNSW 318 at p 323:

“I am of opinion that --- there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights.  In the former class of case if a tight rein were not kept upon interference with the orders of judges of first instance the result would be disastrous to the proper administration of justice.  The disposal of cases could be delayed interminably and costs heaped up indefinitely if a litigant with a long purse or a litigious disposition could at will in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a court of appeal.”

Their Honours later observed –

“It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.”

4. The applicant in this case seeks leave to appeal against an order obtained by the respondent upon it giving a number of undertakings, that the trial of her action be stayed until she undergoes an examination by a psychiatrist to be chosen by the applicant from a panel of three psychiatrists to be nominated by the respondent. The applicant at the time her application was heard suffered from significant disabilities which made it inconvenient if not somewhat discomforting and difficult for her to travel between where she lived near Innisfail and Brisbane. To accomplish this travel partly by motor vehicle and partly by air the evidence disclosed that it would be reasonable for her to be accompanied either by a person nominated by her or by a social worker or nurse to be provided by the respondent to assist her to overcome the possible consequences of her physical disability. It was also shown that it might be necessary for the applicant if called upon to travel to Brisbane for medical examination to spend one or two nights in either Cairns or Brisbane.

5. The order made by the chamber judge was conditional upon the respondent undertaking to pay the professional costs of the psychiatrist chosen by the applicant from the panel nominated by the respondent; to book, provide and pay for air travel necessary for the applicant and a person to be chosen by her to accompany her upon a return flight from Cairns to Brisbane; to provide transport for the plaintiff and that other person from the applicant’s home near Innisfail to the Cairns airport and from the Cairns airport back to her home upon her return from Brisbane; to book provide and pay for hotel accommodation including meals for the applicant and her travelling companion for one or two nights in either Cairns or Brisbane as might be necessary to facilitate the applicant’s visit to the chosen psychiatrist; to pay the taxi fares of the applicant and her companion from Brisbane airport to her hotel accommodation in Brisbane if she needed such accommodation and from that accommodation to Brisbane airport on her return to Cairns; to pay the taxi fares of the applicant and her companion from either the Brisbane airport or the applicant’s hotel accommodation in Brisbane if necessary to the psychiatrist’s rooms and from the psychiatrist’s rooms to either the Brisbane airport or to the applicant’s hotel accommodation; to pay the taxi fares of the applicant and her companion from Cairns airport to her hotel accommodation should this prove necessary; and to disclose to the applicant’s solicitors all correspondence sent and material supplied to the psychiatrist and to provide to them a copy of all correspondence and reports from the psychiatrist forthwith upon their receipt. The applicant was also ordered to pay the respondent’s costs.

6. The point of important principle which the applicant seeks leave to argue maybe stated shortly. There were at the time the order was made a number of psychiatrists in north and far north Queensland and it is contended that it is a matter of public importance to determine whether litigants in the applicant’s disabled condition at the time the order for stay was made should be required to undergo inconvenience and discomfort in travelling from north Queensland to Brisbane merely to permit a defendant to have them examined by a medical practitioner of that defendant’s choice who practised in Brisbane.

7. It was contended that it had been noted by practitioners in northern Queensland that when Brisbane based solicitors act for defendants it is common for them to seek medical examinations on behalf of those defendants by doctors practising in Brisbane.

8. It was contended that leave should be given to argue the question whether it is in general reasonable to achieve the ends of justice that defendants for whatever reason should require to have plaintiffs in northern Queensland medically examined by doctors in Brisbane. It was contended that it should be in only exceptional circumstances that a defendant should be able to require a plaintiff in northern Queensland to attend Brisbane for a medical examination when there are medical specialists in northern Queensland with the same or comparable qualifications and experience.

9. All these matters were canvassed before the learned chamber judge (who heard the defendants application in Brisbane because there was apparently no chamber judge sitting in Innisfail at the material time) but he declined to place any geographical limitation as to where the members of the panel of doctors to be nominated by the respondent practised.

10. As it happened the respondent nominated three medical specialists each of whom practised in Brisbane.

11. It was contended that leave to appeal should be granted essentially on two bases –

1. That having regard to the inconvenience and avoidable demands that would be made upon the applicant should she be forced to travel to Brisbane for a psychiatric examination rather than merely travelling either to Townsville or to Cairns - which she could do by motor vehicle – the order made by the learned chamber judge was so manifestly in error as to indicate that his discretion must have miscarried. 

2. That in the absence of special circumstances the chamber judge ought to have ordered that a panel of psychiatrists nominated by the respondent should include if not all at least presumably some psychiatrists practising in either Cairns or Townsville.

12. It was contended that the applicant might travel by motor vehicle from her residence to either Cairns or Townsville in between three hours and four hours. Should she travel from Cairns to Brisbane by plane it would take perhaps two hours flight time and her return flight from Brisbane to Cairns would take perhaps two and a quarter hours.

13. Stated shortly then transport by motor vehicle to and from her residence to either Cairns or Townsville would take between six and eight hours whereas travel by air between Cairns and Brisbane return, would take an additional four and a quarter hours.

14. The evidence before the chamber judge was to the effect that the applicant’s medical condition would not prevent her from travelling by plane between Cairns and Brisbane provided she had the assistance of a carer to travel with her.

15. It is perfectly clear in my view that justice requires that a plaintiff have the ability and right to choose medical witnesses in whom he or she has confidence. Often that confidence will be based upon the experience of the plaintiff’s legal representatives of the forensic ability of specialist witnesses perhaps suggested by that legal representative.

16. Similarly defendants must have the right to choose those expert witnesses to examine a plaintiff in whose forensic ability and expertise they have confidence.

17. In Lawrence v Oil Drilling and Exploration (Qld) Pty Ltd v Anor (1967) QWN 4 Gibbs J, as he then was, observed that a defendant could lose nothing by providing a plaintiff with a panel of doctors suitable to the defendant from whom the plaintiff might choose one to examine him or her on behalf of the defendant.

18. In my view the undertakings given by the respondent were sufficient to justify the making of the order against which the applicant seeks leave to appeal. There was no material to compel the learned chamber judge to conclude that the applicant would be significantly inconvenienced having regard to the disability from which she then suffered should she travel by aeroplane between Cairns and Brisbane return which would add an additional four and a quarter hours to the six or eight hours that it would take her to travel by motor vehicle from her home to and from Cairns should the undertakings given by the respondent be met and should she be accompanied at all material times by a carer with two nights accommodation if necessary provided at the expense of the respondent in Brisbane and/or Cairns.

19. I am unpersuaded that the exercise of the discretion by the learned chamber judge produced such an unjust result that it must have been affected by error.

20. I am unpersuaded that there is any principle that defendants in selecting medical specialists to conduct medical examinations of plaintiffs should only be permitted “in special circumstances” to require that they to travel from the locality in which they reside to Brisbane or for that matter to any other place where medical specialists in whom those defendants have confidence practise – provided of course that a plaintiff is fully recompensed as far as reasonably possible for the expense, inconvenience and discomfort to which he or she may be subjected. The place of a proposed examination is of course a factor that is to be weighed in the balance, but in the end its only relevance is on the question of convenience, comfort and time of the plaintiff.

21. In my view there is nothing in the material or argument advanced to support the contention that in making the order challenged in this case the learned chamber judge did not take into account fully all matters that were required to be considered in the exercise of his discretion. That is not to say of course that another chamber judge might not have exercised his or her discretion differently. However that is not a sufficient reason to grant leave to appeal against the order actually made. In my view if leave to appeal were granted it is quite unlikely that this court would entertain an argument to the effect that a defendant prepared to comply with the procedure to which Gibbs J adverted in Lawrence and prepared to give the necessary undertakings of the sort that the respondent gave in this case should be limited in the choice of medical witnesses in whose forensic skills it had confidence by placing any geographical constraint of the sort for which the applicant would contend in this case.

22. Substantially in my view the applicant failed before the learned chamber judge – albeit that she was successful in persuading him to require the respondent to nominate three psychiatrists rather than the one psychiatrist for which it initially contended. Similarly at the last minute medical evidence was called before the chamber judge to show the desirability of the applicant having a carer accompany her should she travel between Cairns and Brisbane by aeroplane and this was made a condition of the order. However very substantially the applicant opposed the order sought for medical examination by the respondent on the ground that it was unreasonable to require her to travel to Brisbane rather than travel simply to Cairns or Townsville. She failed essentially on that argument. In my view she should fail also on this application for leave to appeal against an order relating to an interlocutory procedural matter involving the exercise of discretion not shown to work a substantial injustice to her

23. Upon the hearing of the application in this Court evidence was adduced (without objection) to the effect that since the making of the order under challenge the applicant has had further operative treatment to her knees which makes it impossible for her at the moment or at least unreasonable to require her at the moment to travel by air between Cairns and Brisbane. There is no evidence as to when she may be able to travel with the same ability she had when the order under challenge was made on 4 February 2000. In my view it is not appropriate for this court to embark upon a consideration of this change in circumstances to determine whether the challenged order should be varied. This is a matter which should be ventilated before a chamber judge should the applicant seek a removal of the stay or a variation in the terms of the challenged order in the light of the altered circumstances.

24. I would dismiss the application for leave to appeal. While some chamber judges may have taken the view that the appropriate order for costs was one simply that no order for costs whatever be made having regard to the events which lead to this application (the supply of a psychological report a short time before date of trial which stimulated the respondent then to seek to have the applicant psychiatrically examined) I am unpersuaded that it could be said that the orders made for costs were such as to be clearly unsupportable and I would therefore also dismiss the application for leave to appeal against the orders made for costs.

25. HELMAN J:  I agree with the orders proposed by Ambrose J and with his reasons.