Mokhtari v Piacentini & Son Pty Ltd (No 4)

This case arose in the Federal Court's Fair Work Division, but the judgment itself is not a final ruling on the employment dispute. It is a procedural decision about expert medical evidence. Mr Mirmehdi Mokhtari, a former civil engineer employed by Piacentini & Son Pty Ltd, sued the company and claimed damages for loss of earning of more than $15 million. The Court recorded that he said his annual gross earnings including superannuation had been just over $245,000.

The size of the claim mattered because the applicant said a significant part of that amount depended on alleged mental health injuries for which the company was said to be liable. Those alleged injuries were said to justify compensation for loss of earnings for the rest of his working life. In other words, the applicant's mental health was not a side issue. It was a central part of the damages case.

Before this application was heard, the applicant had already obtained a psychiatric report from a practitioner chosen by him. He said the practitioner was engaged through a specialist medico-legal consulting service, was independent and had never been his treating doctor. At that stage, however, no orders had been made about how expert evidence would be received in the proceeding.

Piacentini & Son wanted the applicant to attend a psychiatric examination by Dr Lawrence Terace of OSHGroup. The company sought orders requiring attendance for up to two hours and requiring the applicant to do all things reasonably requested and answer all questions reasonably asked for the purposes of the examination. The applicant opposed that step, arguing that he had already provided an independent report and that a compelled psychiatric examination would be coercive and a serious intrusion into his person and privacy.

The Court's power came from r 23.21 of the Federal Court Rules 2011 (Cth). Justice Colvin specifically noted that there is now express power in r 23.21(6) to make orders of the kind sought and that the rule was introduced in January 2023. That point is important because it places the decision in a clear procedural framework rather than leaving the issue to broader implied powers.

The judgment also noted that similar rules exist in other jurisdictions, including New South Wales and Western Australia, and that authorities from those jurisdictions are useful when considering whether to order a medical examination. But the Court cautioned against treating earlier formulations as a rigid test. The discretion must be exercised judicially and in the interests of justice, having regard to the subject matter, scope and purpose of the power.

Justice Colvin summarised the kinds of matters that courts have taken into account in these applications. They include the nature and extent of the intrusion on personal liberty, the nature of the issues in the proceeding, the probative value of the examination, whether other objective evidence is available, each party's ability to choose a medical witness in whose expertise it has confidence, any existing medical evidence about the need for the examination, and any medical evidence of material risk to the person's health if the examination is ordered.

The Court also repeated an important limit. A medical examination order must be for the purpose of obtaining evidence about the person's medical condition. It cannot be justified as a way of obtaining evidence going generally to the person's veracity. For businesses, that means an application should be tightly connected to the medical issues actually in dispute.

The Court granted the application. Justice Colvin held that, taking due account of the fact that any order requiring a party to submit to a medical examination involves a serious intrusion into personal liberty and privacy, the orders sought were clearly in the interests of justice in this case.

The reasons were practical and tied closely to the structure of the claim. First, the applicant's state of mental health and the extent to which it might be concluded that his mental health had been harmed by the matters relied on in the proceeding lay at the heart of his case. Second, he claimed a serious ongoing mental health injury. Third, he sought damages in a very large amount. Fourth, the respondent had not been involved in selecting the expert relied on by the applicant, and there had been no earlier application for orders about the process for obtaining expert medical evidence.

Taking those matters together, the Court held that fairness in the conduct of the proceedings required that Piacentini & Son be able to choose its own medical expert and test the opinions of the expert retained by the applicant. The Court also noted that there was no medical evidence of any material risk of harm to the applicant's health if he were ordered to undergo the proposed examination. The proposed report was to be obtained from a practitioner with appropriate expertise and was expected to be probative.

The Court rejected the applicant's submission that the order should not be made because the respondent had not demonstrated any basis for criticising the report already obtained. Justice Colvin said that argument misconceived the purpose of the application. The point was not merely to attack the existing report. The point was to obtain an independent opinion from a medical practitioner chosen by the other party for the purpose of conducting its defence.

The Court explained that a second report might confirm the first opinion, and that would itself be significant. Or it might identify matters that lead to a revised opinion. If differences remained, those differences could be explained by the experts and tested at trial. That process, the Court said, is fundamental to the adversarial system administered by Australian courts. The Court also rejected the idea that the respondent could be left to challenge the applicant's report only by submissions or cross-examination. That would be unfair because the respondent would be cross-examining without the benefit of an expert opinion of its own choosing and might be deprived of the opportunity to adduce countervailing evidence.

The Court did not simply order the examination in broad terms. It imposed detailed conditions designed to protect the applicant's position while still allowing the respondent to obtain evidence for its defence. Those safeguards are one of the most useful parts of the judgment for businesses and advisers because they show what a practical order under r 23.21 can look like.

The applicant was ordered to attend an examination by Dr Lawrence Terace of OSHGroup at 36 Parliament Place, West Perth on 18 June 2026 at 11.30 am, or if that date was no longer available then 25 June 2026 at 1 pm, for up to two hours. The respondent had to inform the applicant in writing of the date and time by 24 April 2026. The applicant had to do all things reasonably requested and answer all questions reasonably asked for the purposes of the examination.

Transparency was built into the process. By 11 June 2026, the respondent had to provide the applicant with a copy of the letter of instructions to Dr Terace and all documents provided to him for the purpose of obtaining the report. The applicant was also allowed to have a medical expert of his own choosing attend the examination, provided he informed the respondent of that expert's name by 11 June 2026. The examination was to take place in the presence of that medical expert if one was nominated.

The costs position was also addressed expressly. Subject to any later costs order in the proceeding, the respondent had to bear the costs and expenses charged by Dr Terace for conducting the examination and providing the report. The applicant had to bear the costs of any medical expert he chose to bring. At least seven days before the examination, the respondent had to pay the applicant $152 by transfer into a nominated bank account to meet travel and other attendance expenses.

The Court also required the respondent to serve a copy of Dr Terace's report within 30 days after the examination. No audio or video recording could be taken of any part of the examination without the express consent of everyone present. Finally, the orders included liberty to apply about the time and date of the examination and about the extent of the matters on which Dr Terace's opinion was sought. If the applicant wanted revisions to the letter of instructions, that liberty had to be exercised within seven days of receiving the instructions and had to specify the proposed revisions and concise reasons.

For employers and other business respondents, the main practical point is that a claimant's own expert report may not be the end of the medical evidence question. If the claimant has put psychiatric injury or another medical condition squarely in issue, and that issue is central to liability, causation or quantum, the Court may consider it unfair to leave the respondent without its own examination-based expert evidence.

This is especially so where the damages claim is large and the alleged condition is said to affect future earning capacity over a long period. The Court's reasoning shows that the application should be framed around fairness in the conduct of the proceeding, the centrality of the medical issue, and the probative value of the proposed examination. It should not be framed as a fishing exercise or as a way to gather material about the claimant's general honesty.

The judgment is also a reminder that procedural cooperation matters. Justice Colvin commented that parties must act reasonably, confer to agree procedural steps and avoid unnecessary court hearings. In this case, the Court noted that if the parties had agreed, no application would have been required. Businesses involved in litigation should therefore think about expert evidence early, raise the issue promptly and try to resolve practical arrangements before positions harden.

Another practical lesson is that if you seek this kind of order, you should expect the Court to insist on safeguards. Advance disclosure of instructions, payment of costs, attendance expense reimbursement, service of the report and limits on recording are not side issues. They are part of how the Court balances the serious intrusion on the examined person's liberty and privacy against the respondent's right to defend the case properly.

Finally, this decision should not be read as creating an automatic right to compel examinations in every workplace dispute. The Court repeatedly acknowledged the seriousness of the intrusion. The order was made because the alleged mental health injury was at the heart of the case, the claim was very large, the proposed expert had appropriate expertise, and there was no medical evidence of material risk of harm from the examination.

Does this mean a business can always insist on its own psychiatrist? No. The Court exercised a discretion based on the facts of this case. The seriousness of the intrusion remained a major consideration.

Did the respondent need to prove the applicant's report was defective first? No. The Court said that was not the point of the application. The respondent was entitled to seek its own independent opinion for the defence.

Was the Court concerned about the applicant's privacy? Yes. The judgment expressly recognised the significant personal intrusion involved and balanced that against the respondent's right to defend the claim.

What if the second expert agrees with the first? The Court said that would still be significant. Confirmation can narrow issues and affect how the case is run.

What if the experts disagree? The Court said the differences can be explained by the experts and tested at trial if required. That is part of ordinary adversarial litigation.

The judgment was delivered on 21 April 2026 by Colvin J. The hearing took place on 8 April 2026. The orders set a process for a psychiatric examination in June 2026 and for subsequent service of the report. The decision is procedural and sits within a larger proceeding between the parties.

Because the judgment refers to an earlier decision for a summary of the broader claims, this page should be read as an explanation of the medical examination ruling rather than a complete account of the underlying employment allegations.