In Brief
- In accordance with Part 23 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) a Plaintiff can be compelled to undergo screening for illicit substance use, including the collection of blood, urine, and hair samples in relevant circumstances.
- Privilege or right against self-incrimination is no defence against compliance where the testing is indicated by evidence.
- The power to require a Plaintiff to undergo a drug screening test does not extend to expressly verifying a plaintiff's credit.
Background
This decision was handed down by the NSW Court of Appeal on 3 June 2009.
In the first instance, the Defendant sought orders requiring the Plaintiff to attend a drug screening test prior to a neuropsychological examination. These orders were made by His Honour Judge Robison in the District Court on 27 June 2008, in accordance with Part 23 of UCPR and section 56, 57, 61, and 37 of the CPA
The Plaintiff allegedly sustained a brain injury in an accident. The extent and cause of the cognitive impairment were an issue of significant dispute between the parties.
Evidence from the Plaintiff's psychiatrist confirmed that not only did the Plaintiff have a cognitive impairment but that he used illicit substances and had been evasive about his drug taking habit in a treatment context.
The Plaintiff sought leave to appeal the orders made by the Primary Judge at first instance.
STATUTORY PROVISIONS
Rule 23.2 of the UCPR provides the following:
23.2 Notice for medical examination
- Any party other than the first party may serve on the first party a notice for the medical examination of the person concerned.
- A notice for medical examination is to be in the form of a request that the person concerned submit to examination by a specified medical expert at a specified time and place.
The issue on Appeal was the scope of the definitions of "medical expert."
JUDGMENT
By way of summary – Allsop P agreed with Hodgson JA decision in its entirety, while Tobias JA agreed with Hodgson JA for the most part but differed in his view that the evidence on which the primary judge based his decision lacked "cogency".
Part 23 – Medical Examination
The Court of Appeal decided that an order made with the purpose of compelling the Applicant to submit to a drug screening test was reasonably within the power conferred by Part 23 as it was concomitant to a medical examination. Rule 23.4 allows a court to make an order for medical examination. Rule 23.5 defines a medical expert. In the view of Hodgson JA, such an expert could reasonably be considered to include a pathologist.
Justice Hodgson accepted the Defendant's submission that the rules in question should be interpreted in accordance with the accepted meaning of a medical examination where it is often routine for a pathologist to collect samples. A pathologist can be regarded as a medical practitioner.
Credit
The Court of Appeal confirmed that a Plaintiff could not be reasonably required to attend such testing for the purposes of testing his or her credit but observed that the testing in this instance was in relation to a specific medical examination. In his judgment, the Primary Judge had expressly noted that the orders provided an opportunity to test the Applicant's credit.
Both Hodgson and Tobias JJA accepted the Plaintiff's submission that the Primary Judge erred by focusing too heavily on the purpose of the testing being to ascertain the Plaintiff's veracity.
Self-Incrimination
Justice Hodgson acknowledged the Plaintiff's submission that the risk of incrimination could involve criminal charges. The Plaintiff further submitted that it could not be known whether the testing would be incriminating until the testing had taken place.
The Plaintiff also submitted that the orders were coercive in the context that the Primary Judge had made an order that should the Plaintiff elect not to attend the drug screening or neuropsychological assessment the Defendant was entitled to make an application for a stay of proceedings.
Justice Hodgson confirmed the Primary Judge's decision that the Plaintiff did indeed have a choice and the orders were not coercive.
Justice Hodgson further affirmed the Defendant was entitled to a fair trial involving the liberty to determine the exact nature of the Plaintiff's cognitive injury.
Outcome
While the Court of Appeal found that the Primary Judge had erred in making the orders in accordance with Part 23 to assist the Defendant in verifying the Plaintiff's "credit", the orders were affirmed in principle (albeit amendments were required because the timetable had become outdated.)
An order was made for the Defendant to file a timetable requiring the Plaintiff to attend the said appointments with leave to apply for a stay should the Plaintiff fail to attend.
Implications
In accordance with the provisions of Part 23 UCPR, a Plaintiff can be compelled to attend a drug screening test for the purposes of establishing impairment causally related to the loss pleaded in the subject action.
The plaintiff cannot be compelled to undergo such a test where the purpose of the test is to verify the plaintiff's credibility.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
