Hastwell v Parmegiani [2024] NSWCA 55: Expert Witness Immunity Update

Hastwell v Parmegiani [2024] NSWCA 55

In the matter of Hastwell v Parmegiani [2024] NSWCA 55, the plaintiff, Mr Haydyn Hastwell, commenced proceedings against the defendant, Dr Julian Parmegiani, a psychiatrist.

On the instructions of a law firm which was then acting for the plaintiff (Harmers Workplace Lawyers), the respondent examined the plaintiff in 2016 and produced a medicolegal report. The report was sought in the context of a potential discrimination claim being made against the plaintiff’s former employer, a firm of solicitors. The plaintiff was formerly a solicitor at Kott Gunning Lawyers in Perth. The plaintiff stopped working for Kott Gunning in late 2014 when he was certified as unfit for work due to depression and anxiety. His employment was terminated in April 2015. He instructed Harmers Workplace Lawyers to act for him, asserting that he had experienced bullying, discrimination and harassment during his employment at Kott Gunning Lawyers.

According to the plaintiff, Harmers Workplace Lawyers decided to cease acting for the plaintiff as a result of the respondent’s report. The plaintiff did subsequently file proceedings in the Federal Court against his former employer, but that claim was stayed on the basis that the plaintiff refused to subject himself to a medical examination by a psychiatrist chosen by the other side.

In the proceedings in the New South Wales Supreme Court, the plaintiff had sought to sue the respondent psychiatrist for negligence, breach of fiduciary duty and contravention of a consumer guarantee with respect to the preparation of the medicolegal report. The respondent sought to cut the claim off at the start by bringing an application for summary judgment pursuant to r 13.4 of the Uniform Civil Procedure Rules 2015 (NSW) on the basis of witness immunity. That application succeeded before the primary judge, Cavanagh J: see Hastwell v Parmegiani [2023] NSWSC 1016.

The self represented plaintiff sought leave to appeal from that summary dismissal of the Supreme Court. It is provided at [16]:

The applicant articulated many arguments in his written and oral submissions in this Court, but his core contention seems to come down to this: the rationale for witness immunity is respect for the finality of court judgments; that in this matter there were no proceedings commenced on the basis of the respondent’s report, let alone any judgment in which that report was considered; in those circumstances the preparation of the report was outside the scope of witness immunity. He submitted that unless proceedings have been commenced and decided, and those proceedings involve consideration of the witness’s statement or report, then witness immunity cannot apply to such a statement or report. He sought to distinguish this Court’s decisions in Griffiths and in Young on the basis that in those matters there had been litigation involving the witnesses, whereas in this matter proceedings were never commenced on the basis of the respondent’s report.

The respondent’s response to the plaintiff’s leave to appeal request is provided at [18]:

The respondent sought to answer these points by arguing, in effect, that the primary judge had carefully considered the issues and was correct in his conclusion.

In response to the plaintiff’s leave to appeal request, the New South Wales Court of Appeal provided as follows at [29] and [30]:

Young was decided prior to the High Court’s decision in Attwells. In that case the High Court held that advocates’ immunity did not extend to advice given about whether to settle proceedings, even if given after the trial had begun and where the settlement led to consent court orders. Reasonable arguments can be made as to whether the more restrictive approach in relation to advocates’ immunity taken by a majority of the High Court in that case throws some light on assessing the immunity of witnesses for work done out of court.

As to whether the primary judge applied the correct legal test in this matter, and leaving aside the issue of quite what that test is, as explained above at [9]-[12] his Honour’s reasons were addressed to considering the arguments that the applicant had put as to purpose. His Honour did not express a conclusion in terms of whether the preparation of the impugned report was connected – sufficiently, intimately or otherwise – to the conduct of some court proceedings. There appears to be room for argument whether his Honour erred in that respect, although it might also be argued that that conclusion was implicit. It may be that a connection test can encompass consideration of the (objective) purpose for which evidence was obtained but, as Ward JA’s judgment in Young indicates, the connection test is not itself a purpose test.

The Court of Appeal provided at [36] in conclusion:

…The Supreme Court may make an order requiring a party to have a medical examination: UCPR, r 23.4. We asked the applicant if he proposed to take the same approach in this proceeding, were it to go back to the Supreme Court, as he had adopted in the Federal Court. We understood his position, in the end, to be that he would comply with an order made under r 23.4. We do not consider it appropriate to impose this as a condition of the grant of leave, nor to require an undertaking to that effect. However, if the appeal were to be upheld and the applicant were later to refuse to attend an examination with relevant medical practitioner/s of the respondent’s choice pursuant to an order made under r 23.4 (assuming the making of an order was necessary), then the position taken by the applicant in this application may be significant in considering any stay application subsequently brought by the respondent, and could also be relevant to costs.

Ultimately, on 14 March 2024, the New South Wales Court of Appeal granted the plaintiff’s request for leave to appeal from the summary dismissal of the New South Wales Supreme Court. The matter was listed for directions before the Registrar of the Court of Appeal on Wednesday 27 March 2024. In relation to costs, the Court of Appeal ordered at [38]:

Costs of the application for leave to appeal will be costs in the appeal. It is appropriate that the matter be listed before the Registrar so that the applicant can inform the Court of the results of his attempts to obtain representation and so that the Court can make appropriate directions for the conduct of the appeal.

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