Mokhtari v Piacentini & Son Pty Ltd (No 4) - Medical Examination Order

Original Word Document (81.8 KB) Federal Court of Australia

Mokhtari v Piacentini & Son Pty Ltd (No 4) [2026] FCA 465

| File number: | WAD 33 of 2024 |

| Judgment of: | COLVIN J |

| Date of judgment: | 21 April 2026 |

| Catchwords: | PRACTICE AND PROCEDURE – application seeking orders for the applicant to submit to medical examination by a particular medical practitioner – where applicant opposes the order – where alleged injury to applicant's mental health a key issue in the proceedings - where applicant has already obtained an independent medical report – consideration of r 23.21 of the Federal Court Rules 2011 (Cth) – application allowed |

| Legislation: | Federal Court Rules 2011 (Cth) r 23.21

Rules of the Supreme Court 1971 (WA) O 28 r 1

Uniform Civil Procedure Rules 2005 (NSW) r 23.4 |

| Cases cited: | Boral Transport Pty Ltd v Gulic [2013] NSWCA 150

Chopra v New South Wales [2023] NSWCA 142

Cranston v Kiernan [2017] WASCA 100

Graham v Peabody Energy [2023] NSWSC 1087

Gray v Hopcroft [2000] QCA 144

Hastwell v Kott Gunning (No 5) [2020] FCA 621

Hastwell v Kott Gunning [2021] FCAFC 70

KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's Hospital Westmead [2010] NSWSC 891

McKinnon v Australia [1998] FCA 1456

Mokhtari v Piacentini & Son Pty Ltd (No 3) [2026] FCA 464

Plaintiff (name Withheld) v Stapleton [2017] NSWSC 914

Prescott v Bulldog Tools Limited [1981] 3 All ER 869

Rowlands v New South Wales [2009] NSWCA 136; (2009) 74 NSWLR 715 |

| Division: | Fair Work Division |

| Registry: | Western Australia |

| National Practice Area: | Employment and Industrial Relations |

| Number of paragraphs: | 1 8 |

| Date of hearing: | 8 April 2026 |

| Counsel for the Applicant: | The applicant appeared in person |

| Counsel for the Respondent: | Mr N Ellery |

| Solicitor for the Respondent: | Jackson McDonald |
ORDERS

| WAD 33 of 2024 |

| BETWEEN: | MIRMEHDI MOKHTARI

Applicant | |
| AND: | PIACENTINI & SON PTY LTD (ABN 18 008 797 715)

Respondent | |

| order made by: | COLVIN J |
| DATE OF ORDER: | 2 1 April 2026 |
THE COURT ORDERS THAT:

1. Pursuant to r 23.21 of the Federal Court Rules 2011 (Cth), the applicant submit to an examination by Dr Lawrence Terace of OSHGroup at 36 Parliament Place, West Perth on 18 June 2026 at 11.30am, or if that date is no longer available then 25 June 2026 at 1 pm, for a duration of up to 2 hours.

2. On or before 24 April 2026, the respondent do inform the applicant in writing of the date and time for the examination pursuant to order 1.

3. The applicant do all things reasonably requested, and answer all questions reasonably asked, by Dr Terace for the purposes of the examination.

4. On or before 11 June 2026, the respondent do provide to the applicant a copy of the letter of instructions to Dr Terace as to the matters in respect of which the opinion of Dr Terace is sought and all documents provided to Dr Terace for the purposes of obtaining a medical report in accordance with these orders.

5. On or before 11 June 2026, the applicant do inform the respondent of the name of a medical expert, if any, that the applicant chooses to have attend the examination.

6. The examination of the applicant in accordance with these orders take place in the presence of any medical expert of whom the respondent has been informed by the applicant in accordance with these orders.

7. Subject to any order as to costs made in these proceedings, the respondent do bear the costs and expenses charged by Dr Terace for conducting the examination and providing a medical report.

8. Subject to any order as to the costs made in these proceedings, the applicant do bear the costs and expenses charged by any medical expert of whom the respondent has been informed by the applicant in accordance with these orders.

9. At least 7 days before the examination, the respondent do pay to the applicant by transfer into a bank account nominated by the applicant the sum of $152.00 to meet the travel and other expenses of the applicant in connection with the examination by Dr Terace.

10. Within 30 days after the examination of the applicant by Dr Terace, the respondent serve a copy of a medical report of Dr Terace on the applicant.

11. No audio or video recording shall be taken of any part of the examination of the applicant to be conducted in accordance with these orders without the express consent of all those present at the examination.

12. There be liberty to apply as to the time and date of the examination.

13. There be liberty to apply as to the extent of matters in respect of which the opinion of Dr Terace is sought with such liberty to be exercised within 7 days of the applicant being provided with a copy of the letter of instructions to Dr Terace specifying the terms of any proposed revisions to the letter of instructions and concise reasons for

those proposed revisions.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1 Mr Mirmehdi Mokhtari was previously employed as a civil engineer by Piacentini & Son Pty Ltd. He says that when he worked for Piacentini & Son his total gross earnings per year including superannuation was just over $245,000. He has brought proceedings against Piacentini & Son in which he claims damages for loss of earning of over $15,000,000. In Mokhtari v Piacentini & Son Pty Ltd (No 3) [2026] FCA 464 I set out a summary of Mr Mokhtari's claims. The quantum of damages he seeks relies to a significant extent upon an allegation that Piacenti & Son is liable for mental health injuries that he has suffered. They are said to be of a kind that he is entitled to an award for loss of earnings for the rest of his working life.

2 Mr Mokhtari is conducting the proceedings on his own behalf. He has obtained a psychiatric report from a medical practitioner. The practitioner was chosen by Mr Mohktari. He says that the practitioner was engaged through a specialist medico legal consulting service. He says that the practitioner who provided the report is independent and has never been his treating doctor. No orders have been made in the proceedings as to the receipt of expert evidence in the proceedings.

3 Piacentini & Son has applied for orders requiring Mr Mohktari to submit to an examination by a particular medical practitioner. The proposed practitioner has the requisite expertise to undertake the proposed examination. The orders, if made, would require attendance by Mr Mokhtari for a consultation of up to 2 hours and would require Mr Mohktari to do all things reasonably requested and answer all questions reasonably asked in the examination. A copy of the letter of instruction would be provided to Mr Mohktari in advance of the examination. There will be provision for a medical practitioner of Mr Mohktari's choosing to attend the examination at his cost. Otherwise, Piacentini & Son would bear the costs of the examination and the preparation of a report, subject to any order that may subsequently be made as to the costs of the proceedings. Within 30 days of the examination, a copy of the report of the medical practitioner will be provided to Mr Mohktari. The orders would also require the payment of an amount of $152 to Mr Mohktari to cover his costs of attending.

4 Mr Mohktari opposes the making of the orders. In summary, his basis for opposing the orders is as follows:

(1) An independent medical report has already been obtained by him and provided to Piacentini & Son;

(2) Piacentini & Son has not identified any specific deficiencies or disputed issues not addressed in the report that Mr Mohktari has provided; and

(3) The proposed orders are coercive and a serious intrusion into his person and privacy.

5 Certain procedural matters were also raised by Mr Mokhtari. In part they related to the significance of an earlier statement by Mr Mokhtari that he had no objection in principle to undertaking the proposed medical examination. It is not necessary to consider what was meant by that statement or whether it has any ongoing significance because the submissions advanced orally for Piacentini & Son placed no reliance on the statement.

6 Mr Mokhtari also maintained that a case management direction to the effect that Piacentini & Son must file and serve any interlocutory application for orders pursuant to r 23.21 on or before 28 November 2025 required the bringing of an interlocutory application as the proper procedure for determining whether he would submit to the proposed examination. I observe that the order made did not require Piacentini & Son to proceed by bringing an interlocutory application. It required 'any application' to be brought by a particular time. It contemplated conferral between the parties to see whether they might agree. If there had been agreement, no application would have been required. It is necessary for there to be cooperation as to such matters. The parties must act reasonably and not proceed with an eye to technicality. They have an obligation to confer to agree procedural steps and avoid unnecessary court hearings. In the result, Mr Mokhtari did not agree to the making of the orders so the interlocutory application was needed.

7 Quite properly, Piacentini & Son did not dispute the significant personal intrusion to Mr Mokhtari's liberty that would flow from the proposed orders. In support of the making of the orders, Piacentini & Son emphasised the adversarial nature of the process and the importance, in that context, of it being able to lead its own expert evidence relevant to Mr Mokhtari's injury in circumstances where the alleged injury was advanced as the basis for a claim to a very substantial award of damages.

Relevant principles

8 There is now express power in r 23.21(6) of the Federal Court Rules 2011 (Cth) to make orders of the kind sought. The rule was introduced in January 2023. There are equivalent rules in other jurisdictions: see, for example, r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) and Order 28 rule 1(2A) of the Rules of the Supreme Court 1971 (WA). There is sufficient similarity between the rules and the issues that arise as to the making of orders requiring a party to submit to a medical examination that the authorities from other jurisdictions concerning the matters that are appropriately considered in deciding whether to make such an order are of assistance.

9 Many of the cases where there has been an issue as to whether orders should be made requiring a party to submit to a medical examination refer to principles derived from Prescott v Bulldog Tools Limited [1981] 3 All ER 869. In Plaintiff (name Withheld) v Stapleton [2017] NSWSC 914, McCallum J reproduced these principles (at [4]):

In determining an application of this sort it was held in Prescott that a court must -

(a)    assess whether the defendant’s request is reasonable in the light of information and advice received from its experts;

(b)    assess whether the plaintiff’s refusal is similarly reasonable;

(c)    if both are reasonable then balance the plaintiff’s right to personal liberty against the defendant’s right to defend itself in the litigation the plaintiff has brought against it; one right not being considered to be more important that the other right; and

(d)    examine objectively the weight of the reasonableness of the defendant’s request as seen by it as against the weight of the plaintiff’s objection and balance one against the other “to ensure a just determination of the cause as between the parties taking into account their reasonable requirements.

10 However, in Cranston v Kiernan [2017] WASCA 100 at 39 the Court cautioned against treating the principles as a 'test'. Their Honours observed that the 'discretion…is not confined in that way… Rather, it is to be exercised in the interests of justice, having regard to the evident subject matter, scope and purpose of the power'. Similarly, in Chopra v New South Wales [2023] NSWCA 142 it was said to be 'axiomatic that the power…is to be exercised judicially and having regard to factors relevant to the exercise of the discretion in the particular case': at 39.

11 In the decided cases, the following matters have been taken into account:

(1) the nature and extent of the intrusion on personal liberty involved in requiring the party to submit to the examination: Plaintiff (name Withheld) v Stapleton at [4]-[7] and in Boral Transport Pty Ltd v Gulic [2013] NSWCA 150 at [12]-13.

(2) the nature of the issues raised in the proceedings: Plaintiff (name Withheld) v Stapleton at [7].

(3) the probative value of the examination in the particular case: KF By Her Tutor RF v Royal Alexandra Hospital for Children know n as the Children's Hospital Westmead [2010] NSWSC 891 at [48]-49.

(4) the extent to which there is other objective evidence such as scans and test results that enable an opinion to be formed without requiring a party to submit to a medical examination;

(5) the ability and right of each party to choose a medical witness in whose forensic ability and expertise the party has confidence: Gray v Hopcroft [2000] QCA 144 at [15]-16 and Hastwell v Kott Gunning (No 5) [2020] FCA 621 at [53]-59, reasoning that was upheld in Hastwell v Kott Gunning [2021] FCAFC 70 at 12.

(6) any existing medical evidence and opinions from experts about the need for such an examination and the consequences of such an examination: Graham v Peabody Energy [2023] NSWSC 1087 at 15

(7) medical evidence as to any material risk to the health of the person if required to undertake the examination: McKinnon v Australia [1998] FCA 1456 at 6 (Hill J).

12 Further, the 'ordering of particular medical examinations must be for the purpose of obtaining evidence about a plaintiff's medical condition, and cannot be justified by the purpose of obtaining evidence that might go to the plaintiff's veracity generally': Rowlands v New South Wales [2009] NSWCA 136; (2009) 74 NSWLR 715 at 49.

Examination clearly in the interests of justice in the present case

13 For the following reasons, taking due account of the fact that any order requiring a party to submit to a medical examination involves a serious intrusion into the personal liberty and privacy of an individual, the orders sought are clearly in the interests of justice in the present case:

(1) Mr Mokhtari's state of mental health and the extent to which it might be concluded that his mental health has been harmed as a result of the matters he relies upon as the basis for his claims is a matter that lies at the heart of his case;

(2) Mr Mokhtari claims that he has suffered a serious mental health injury which is ongoing;

(3) Mr Mokhtari seeks damages in a very large amount;

(4) Piacentini & Son was not involved in the selection of the expert relied upon by Mr Mokhtari and there was no application before the report was obtained for orders as to the process to be followed for obtaining expert medical evidence for use in the proceedings;

(5) Taking account of the matters in (1) to (4), fairness in the conduct of the proceedings requires that Piacentini & Son be able to choose its own medical expert and test the opinions of the expert retained by Mr Mokhtari;

(6) There is no medical evidence of any material risk of harm to Mr Mokhtari's health if he was ordered to submit to the proposed examination;

(7) The fact that Mr Mokhtari has obtained an opinion as to his alleged mental health injury does not mean that there is no probative value to the evidence that would be obtained from the proposed examination; and

(8) The report is proposed to be obtained from a practitioner with appropriate expertise who, it may be expected, will be able to provide a report that is probative.

14 As required by the relevant rule, the proposed orders allow Mr Mokhtari to have the protection of having his own medical practitioner present. He will also receive in advance of the consultation a copy of the brief to the medical practitioner.

15 Mr Mokhtari submitted that the order should not be made because Piacentini & Son had not demonstrated any basis for criticising the report that had been obtained or any deficiencies with that report. This misconceives the purpose of the application. The application itself seeks to obtain an independent opinion from a medical practitioner chosen by the other party for the purpose of conducting its defence. A report from a medical practitioner may confirm the opinion that has been obtained. That in itself would be significant for the conduct of the proceedings. On the other hand, it may identify matters which when considered by the practitioner engaged by Mr Mokhtari result in a revision of the opinion. If there remain differences then an explanation can be provided by the experts for those differences and they can be tested at trial if required. A process of that kind whereby each party presents its case to the Court is fundamental to the adversarial system administered by courts in Australia. Although the Court has power to require the appointment of a single expert, that course has not been suggested. It would be unlikely to be ordered in a case like the present.

16 Mr Mokhtari submitted that the interests of Piacentini & Son would be sufficiently protected by permitting it to challenge the report obtained by Mr Mokhtari by submissions or cross-examination. Such a course would be unfair to Piacentini & Son because any such cross-examination would have to be conducted without having obtained an opinion from an expert of its own choosing. It would deprive Piacentini & Son of the opportunity to adduce countervailing evidence if the expert engaged by Mr Mokhtari did not accept matters put by way of cross-examination (to the extent that such matters may be able to be identified without a further examination of the kind proposed).

17 Given the significance of the issue for the proceedings, it would be most unfair if, in effect, Mr Mokhtari was able to proceed with his case on the basis that the expert identified by him was, in substance, the only expert who was able to present an opinion as to his mental health informed by an appropriate examination.

18 For those reasons, there should be orders for medical examination of the kind proposed by Piacentini & Son.

| I certify that the preceding eighteen (1 8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. |
Associate:

Dated: 21 April 2026