In the recent matter of Maea v Acciona Infrastructure Australia Pty Ltd [2025] NSWSC 567, the plaintiff (Siosaia Maea) commenced a personal injury compensation claim against the defendant, Acciona Infrastructure Australia Pty Ltd.  

Siosaia Maea was injured in the course of his employment with Bleasdale National Personnel Pty Ltd on 22 January 2019 when he fell through an unguarded manhole into a pit. Mr Maea sued the defendant Acciona Infrastructure Australia Pty Ltd, which he alleged was the design and construction contractor responsible for the Sydney Light Rail Project where he was working. Mr Maea did not sue his employer. The proceedings were commenced by statement of claim filed on 19 January 2022. The defence was filed on 21 November 2022. 

By its notice of motion filed on 1 May 2025, the defendant relevantly moved the Court for orders pursuant to UCPR 1.12, extending until 9 May 2025 the time for the defendant to serve an expert report from Carl Strautins dated 17 April 2025 and the unsigned evidentiary statement of Ashley Coates. The defendant also sought leave pursuant to UCPR 31.28 to rely upon Mr Strautins’ expert report. The plaintiff opposed these orders. 

In its consideration, the Court provided at [10] – [12]:  

In my opinion, the things on which the defendant wishes to rely in this context could never amount to exceptional circumstances. I was not unexpectedly referred to the decision of the Court of Appeal in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290… 

Far from being exceptional, the circumstances to which the defendant refers in this case, whether taken alone or in combination, are ordinary, mundane, not unusual and perhaps somewhat regrettably, not out of the ordinary. There is no suggestion that Mr Strautins is the only expert in the field who could possibly provide the evidence the defendant wants him to provide. There is no evidence to suggest that attempts were made to qualify anyone else in his stead. The defendant appears simply to have proceeded somewhat hopefully upon the basis that the joinder of Mr Maea’s employer would alter the litigious landscape and that it was appropriate to put compliance with the rules and orders of the court on hold until that became clear. 

Nor do I perceive that anything in the quoted sections of the Civil Procedure Act 2005 assists the defendant. These proceedings commenced in 2022. In the three and a half years since, Mr Maea still does not have an expert report from the defendant that has been served in accordance with the rules or an order of the court and he does not have what I consider to be an explanation of why that is so. Quite apart from the total absence of exceptional circumstances, the overriding purpose and the dictates of justice do not otherwise seem to me either to support or compel the favourable exercise of any discretion to extend time for the service of the defendant’s expert reports. 

Then by its further notice of motion filed on 12 May 2025, the defendant sought orders pursuant to UCPR 23.4 that Mr Maea be required to undertake psychometric testing by Dr John McMahon on 10 June 2025 or on some other date suitable to the plaintiff and to the doctor. The defendant’s submissions in support of this application were as follows:  

In the present case, the key factors affecting the exercise of the Court’s discretion to make an order pursuant to UCPR 23.4 for Mr Maea to submit to psychometric testing appear to be whether the order is reasonable in light of information and advice received from experts and whether any refusal by him to attend an appointment is reasonable.  

The defendant contended that the circumstances have created a need objectively to balance the reasonableness of the defendant’s request with Mr Maea’s objection to ensure a just determination taking account of the parties’ reasonable requirements. 

The defendant submitted further that psychometric testing is necessary to assist the Court to evaluate Dr Lee’s diagnosis of malingering, particularly as there was no indication of a potential diagnosis of malingering until it received Dr Lee’s report on 28 April 2025 and his revised report on 1 May 2025. 

At [17] – [18] the Cout provides as follows:  

In my opinion, this rule does not authorise the making of an order that Mr Maea submit to psychometric testing for the particular purposes nominated by the defendant. First, Dr Lee carried out a limited form of psychometric testing. He was as a result able to express the opinion that Mr Maea was malingering. The defendant already has the benefit of that opinion for use in these proceedings. Secondly, however, Dr Lee did not recommend further testing: the present application is, in effect, a non-medical forensic decision by the defendant and its legal advisers to obtain additional support for Dr Lee’s opinion that Mr Maea is exaggerating. The application is a thinly disguised attempt to impugn Mr Maea’s credit, rather than a desire to secure an expert medical opinion about his alleged injuries and disabilities. Thirdly, and consequently, the defendant’s application is impermissible and “not a proper purpose for a medical examination”: Corke v Shopping Centres Australasia Property Group Re Limited trading as Cabarita Beach Shopping Centre [2024] NSWSC 1019, per Campbell J… 

In the present case, there is no secret that the defendant wishes to have Mr Maea tested psychometrically in order to assess whether or not he is “malingering”. As it was put by Mr Griscti for the defendant, a more complete psychometric examination of Mr Maea would on one view permit Dr Lee to have greater confidence in providing “a non-diagnosis”. The purpose of the proposed examination by Dr McMahon is therefore not for, and has nothing to do with, any diagnostic assessment connected with Mr Maea’s claimed injuries or disabilities. It is in contrast clearly for what is a collateral, and as such impermissible, purpose. The application should not be allowed.

Ultimately, on 3 June 2025, the Supreme Court of New South Wales ordered as follows:  

Dismiss the defendant’s application pursuant to UCPR 1.12 extending until 9 May 2025 the time for service of the report of Carl Strautins dated 17 April 2025. 

Dismiss the defendant’s application pursuant to UCPR 31.28 for leave to rely upon the report of Carl Strautins dated 28 April 2025. 

Pursuant to UCPR 1.12, extend until 9 May 2025 the time for the service of the unsigned evidentiary statement of Ashley Coates. 

Dismiss the defendant’s application pursuant to UCPR 23.4 for an order that the plaintiff be required to undertake psychometric testing. 

Order the defendant to pay the plaintiff’s costs of and incidental to the defendant’s notices of motion filed 1 May 2025 and 12 May 2025. 

Make no order as to the costs of the cross defendant. 

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