Kirschner v Perochinsky [2012] NSWCA 235

Kirschner v Perochinsky [2012] NSWCA 235

Leave to appeal was refused because no legal error or palpable error was established in the primary judge's discretionary refusal of a second psychiatric examination. The primary judge was entitled to consider that the plaintiff had already been examined by a psychiatrist at the defendants' instance and that Dr Kossoff was unwilling to examine the plaintiff in the presence of a medical expert of the plaintiff's choice as required by r 23.5. The Court of Appeal should not interfere with interlocutory procedural orders in the absence of such error.

Jurisdiction
Australia
Judgment Date
25 July 2012
Procedural Posture
Application for Leave to Appeal From an Interlocutory Decision / Leave to Appeal
Outcome
Application for leave to appeal dismissed with costs payable forthwith.
Legal Topics
['leave to Appeal' 'interlocutory Decision' 'medical Examination' 'uniform Civil Procedure Rules 2005 (nsw), Pt 23']
['appeals' 'civil Procedure'] ['leave to Appeal' 'interlocutory Decision' 'medical Examination' 'uniform Civil Procedure Rules 2005 (nsw), Pt 23']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal From an Interlocutory Decision / Leave to Appeal

Legal Issues

  1. 1 ["Whether the primary judge erred in dismissing the defendants' application for the plaintiff to be medically examined by Dr Lana Kossoff pursuant to r 23.1 of the Uniform Civil Procedure Rules 2005 (NSW)." 'Whether the primary judge took into account irrelevant factual matters in refusing the medical examination.' 'Whether the Court of Appeal should interfere with interlocutory orders regulating procedure in a trial division.']

Ratio Decidendi

Leave to appeal was refused because no legal error or palpable error was established in the primary judge's discretionary refusal of a second psychiatric examination. The primary judge was entitled to consider that the plaintiff had already been examined by a psychiatrist at the defendants' instance and that Dr Kossoff was unwilling to examine the plaintiff in the presence of a medical expert of the plaintiff's choice as required by r 23.5. The Court of Appeal should not interfere with interlocutory procedural orders in the absence of such error.

Court Disposition

Application for leave to appeal dismissed with costs payable forthwith.

Orders

  • ['Dismiss the application for leave to appeal.' "Order the applicant to pay the respondent's costs of the application, such costs to be payable forthwith."]