Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Kirschner v Perochinsky [2012] NSWCA 235
• Hearing dates: 25 July 2012
• Decision date: 25 July 2012
• Before: Basten JA at [1]; Macfarlan JA at [11]

Decision

1. Dismiss the application for leave to appeal.

2. Order the applicant to pay the respondent's costs of the application, such costs to be payable forthwith.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - leave to appeal - appeal from interlocutory decision - primary judge dismissed application for medical examination of plaintiff - whether primary judge erred in identifying relevant factual considerations - whether Court of Appeal should interfere with orders regulating procedure in a trial division - discussion of In The Will of Gilbert (1946) 46 SR(NSW) 318; PROCEDURE - medical examination - defendants applied for medical examination of plaintiff by medical expert - plaintiff previously medically examined at defendants' request - whether prior examination a consideration relevant to subsequent application
• Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 23.1, 23.5; Pt 23
• Cases Cited: In The Will of Gilbert (1946) 46 SR(NSW) 318
• Category: Principal judgment
• Parties: Sandra Kirschner (First Applicant); Bernhard Kirschner (Second Applicant); Antonina Perochinsky (Respondent)
• Representation: Counsel: Mr P C Silver (Applicants); Ms N Obrart (Respondent); Solicitors: Milne Berry Berger Freedman (Applicants); Brown Wright Stein Lawyers (Respondent)
• File Number(s): CA 2012/179868

Decision under appeal

• Jurisdiction: 9111
• Date of Decision: 2012-05-10 00:00:00
• Before: Nicholas J
• File Number(s): SC 2010/362138

Judgment

1 BASTEN JA: This matter involves an application for leave to appeal from a judgment of Nicholas J given in the Common Law Division on 10 May 2012. The application before the primary judge involved a notice of motion seeking to have the plaintiff in the proceedings in the Equity Division examined by a Dr Lana Kossoff pursuant to r 23.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").

2 The background to the application is a matter of the procedural history which I do not intend to go into in detail. It is I think common ground that the physical and mental condition, and primarily the mental condition, of the plaintiff will be a matter relevant to the dispute in the Equity Division. That dispute concerns whether or not certain property made available to the defendants by the plaintiff and her husband during her husband's lifetime was in fact a gift as they assert, or was provided on some other basis. The plaintiff's husband died on 8 July 2009.

3 The question which has been raised in respect of the state of mind of the plaintiff is based upon a report prepared by Dr Kossoff, a consultant psychiatrist of old age, who, having seen certain papers including the pleadings and some affidavits in the present proceedings, formed what she described as "a strong view that there is sufficient indication" from the material she had viewed that the plaintiff may be suffering from "a delusional illness" after her husband's death. Dr Kossoff stated that the delusion was apparently that one of the defendants had been telling people that she did not know what she was doing and that the plaintiff had dementia.

4 Obviously Dr Kossoff is not in a position to provide a report or express professional opinions with any degree of support without having had an opportunity to examine the plaintiff herself. It was an order that she be permitted to examine the plaintiff which was refused by the primary judge.

5 There were a number of reasons why his Honour thought it was not in the interests of justice that the plaintiff be subjected to such an examination. One was that the plaintiff had already been examined on 4 May 2011 by Dr John Roberts, psychiatrist, at the instance of the defendants. The fact that Dr Roberts was apparently not invited to consider whether she suffered from insane delusion is a matter for which the defendants were responsible. It was they who prepared the letter of instruction to Dr Roberts which failed to ask that question. True it is that the report prepared by Dr Kossoff on the basis of material supplied to her was not available until 4 April 2012 according to the date of her affidavit. When precisely she formed the view which she did is not explained. Nevertheless, his Honour was entitled to take account of the fact that the plaintiff had already been subjected to an examination by a psychiatrist for the purposes of determining her mental state.

6 Secondly, Dr Kossoff is not willing to undertake an examination in the presence of a medical expert of the plaintiff's choice, which is a requirement of r 23.5. The primary judge saw no reason why r 23.5 should be dispensed with.

7 There were other factors which may have been relevant to his consideration of the matter which are not fully set out in the brief reasons which he gave on 10 May for dismissing the motion. For example, it is unclear from the material presented by Dr Kossoff why it is that she forms the view, even on a preliminary basis, that the plaintiff is suffering from insane delusion. Prior to bringing the motion in these proceedings, the defendants had sought to have an order made by the Guardianship Tribunal, presumably on the basis that she was not capable of managing her own affairs. They have also sought to have an assessment made in this Court as to whether she is delusional. The suggestion by Dr Kossoff that the plaintiff believed one of the defendants was spreading rumours that she was delusional is not self-evidently a false belief.

8 The principles which govern the application of the rules in UCPR, Pt 23 dealing with medical examinations were not disputed on this motion. It was not suggested that the primary judge had misapplied the legal principles to be taken into account. There was criticism rather of certain factual matters which he had apparently taken into account which were said to be irrelevant, in the sense that they were outside the legal framework to which he was permitted to have regard. Those matters need not be identified for these purposes. None of them indicate that there was any legal mistake made by his Honour as to the factors he was entitled to consider. What weight he gave to particular aspects of the considerations before him was entirely a matter for him.

9 There are many cases in which this Court has granted leave to appeal from what are interlocutory orders regulating procedure in a trial division. On occasion the principles established in In The Will of Gilbert (1946) 46 SR(NSW) 318 at 323 have been overlooked. This is a case in which those principles bear directly upon the proper outcome for this application. As Jordan CJ said, if a tight rein were not kept upon interference with orders of judges of first instance, the result would be disastrous to the proper administration of justice.

10 This is a case in which, without any palpable error, and indeed exercising what might be thought on the face of it to be an entirely appropriate response to the application before him, the primary judge refused the application for a second medical examination of the plaintiff in the proceedings. No error having been established, the application should be dismissed and the applicant should pay the respondent's costs in this Court; the costs should be payable forthwith.

11 MACFARLAN JA: I agree with Basten JA.

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Decision last updated: 02 August 2012