[2009] HCA 27
AS v Minister for Immigration and Border Protection (Ruling No 6) (2016) 53 VR 631
[2016] VSC 774
Beerens v Biggs [2019] NSWSC 1707
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
[2009] HCA 25
Coffey v Murrumbidgee Local Health District [2018] NSWSC 1538
Kadian v Richards (2004) 61 NSWLR 222 at [94]
[2004] NSWSC 382
Karl Suleman Enterprizes Pty Ltd (In Liq) v Pham [2013] NSWCA 93
Nowlan v Marston Transport Pty Ltd (2001) 53 NSWLR 116
Source
Original judgment source is linked above.
Catchwords
[2009] HCA 27
AS v Minister for Immigration and Border Protection (Ruling No 6) (2016) 53 VR 631[2016] VSC 774
Beerens v Biggs [2019] NSWSC 1707
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304[2009] HCA 25
Coffey v Murrumbidgee Local Health District [2018] NSWSC 1538
Kadian v Richards (2004) 61 NSWLR 222 at [94][2004] NSWSC 382
Karl Suleman Enterprizes Pty Ltd (In Liq) v Pham [2013] NSWCA 93
Nowlan v Marston Transport Pty Ltd (2001) 53 NSWLR 116
[2001] NSWCA 346
PPK Willoughby Pty Ltd v Baird [2019] NSWSC 705
Richards v Kadian (2005) 64 NSWLR 204
[2005] NSWCA 328
Rosenberg v Percival (2001) 205 CLR 434, [2001] HCA 18
South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513
[2018] NSWCA 69
Sparks v Hobson [2018] NSWCA 29
Sydney South West Area Health Service v MD (2009) 260 ALR 702
Judgment (9 paragraphs)
[1]
Background to the application for a stay and interviews
The defendant has obtained various medical records relating to the plaintiffs by way of subpoenas to the Royal Hospital for Women (RHW), to Dr Hawke and to Dr Coogan. The records sought in the subpoenas to Dr Hawke and Dr Coogan were described, in each subpoena, as follows:
"All clinical notes (handwritten and electronic), medical reports, notes, memoranda, referral letters, pathology reports, hospital records, radiology reports, reports of any medical examinations or investigations or surgery, all correspondence and any other document or thing touching or concerning all treatment received by [the first plaintiff]".
The background to this application, as revealed in the subpoenaed medical records, was that Dr Hawke and Coogan were the first plaintiff's treating obstetricians during her first pregnancy in late 2012 and early 2013. One or other or both had referred the first plaintiff to the defendant for ultrasounds during the pregnancy.
After the ultrasound on 13 February 2013, the defendant identified and reported, in his 13 February 2013 report to Dr Hawke, the presence of an in turning of the left foot and polyhydramnios and noted that the collective findings raised concern as to a possible syndromal association. The defendant also made recommendations concerning the performance of amniocentesis, other genetic testing (an "array CGH") and, depending upon the results of that testing, an obstetric MRI scan. In addition the defendant had made arrangements for the first plaintiff to attend for the amniocentesis/array CGH two days later on 15 February 2013.
There is a record of a telephone call between Dr Hawke and the defendant at about 7:30 pm on 13 February 2013. The record indicates that the defendant telephoned Dr Hawke because of what had been shown in the ultrasound and that the defendant had advised the first plaintiff to consider amniocentesis in two days' time. The record also indicates that Dr Hawke telephoned the first plaintiff and advised her that Dr Hawke would look at the ultrasound report the next day and discuss it with the Maternal Foetal Medicine Department at the RHW.
The first plaintiff went to see Dr Hawke on 14 February 2013 and she was referred to Prof Welsh at the Maternal Foetal Medicine Department at RHW with an appointment to see him at 9:30 AM on 15 February 2013. In the letter of referral, Dr Hawke referred to the results of the ultrasound performed on 13 February 2013 and to the fact that ultrasound copies had been given to Prof Welsh that day.
On 14 February 2013, the booking that the defendant had made for amniocentesis/array CGH on 15 February 2013 was cancelled by one of the plaintiffs.
The first plaintiff saw Prof Welsh on 15, 22 and 28 February and 14 and 28 March 2013. In addition, the first plaintiff saw a midwife at RHW on 28 February and 5 March 2013. The RHW medical records also included copies of the defendant's reports in relation to the ultrasounds on 28 December 2012 and of 13 February 2013.
On 15 February 2013, it appears that Prof Welsh conducted an "Anomaly Scan" by ultrasound and provided a report to Dr Hawke. In addition to noting polyhydramnios, Prof Welsh's report included the following:
"Fetal Anatomy
The following were visualised and appear normal:
head, brain, face, chest, four-chamber view and great vessels, abdominal wall, gastro-intestinal tract, kidneys and bladder, skeleton
The following structures were not well seen and need to be reviewed at a subsequent visit:
spine, neck and skin
Abnormal Structures:
Extremities:
Feet: Left foot equinivarus.
…
Diagnosis
Single live fetus at 26 weeks and 0 days gestation with low risk NT and serum screening.
The presence of left talipes equinivarus is confirmed. There is good movements of all other joints and in particular the hands are clearly seen to open.
Polyhydramnios is present with AFI of 26.7 cm. …
Other structures are normal but neck/spine was not well visualised.
We discussed the possible causes for both talipes and also for the polyhydramnios. There is a background of a very low risk FTS [first trimester screening]. The possible causes include genetic syndromes, neuromuscular causes, gestational diabetes, or the coexistence of two common physical features.
We discussed the potential later need for amnio drainage if the fluid increases in volume, or the need for amniocentesis with micro-array evaluation.
At this stage I would recommend review in one week's time with genetic review at this stage, and they GTT will be performed within the next week.
Genetics consult. GTT. Decision for amnio drainage/amniocentesis at next appointment.
An appointment has been made on: 22.02.2013, correlating to the gestational age of 27+0."
On 22 February 2013, Prof Welsh rescanned the first plaintiff and provided a further report of that date to Dr Hawke. Once again the report noted the polyhydramnios and included the following:
"GTT done on 19/2/2013: Fasting: … (normal). Spine views which were not visible in the last scan are entirely normal today.
…
Diagnosis
Single live fetus at 27 weeks and 0 days gestation.
The previous findings are unchanged stop encouragingly there are excellent fetal movements on today's scan. The profile appears normal on today's scan. The polyhydramnios has increased slightly.…
[The first and second plaintiffs] have discussed the possible use of micro-array with the Dr Anne Turner from genetics.
An appointment has been made on:
[date corrected by hand to 28/2/13], correlating to the gestational age of 28+0." (emphasis added).
On 28 February 2013, Prof Welsh rescanned the first plaintiff and provided a further report of that date to Dr Hawke. On this occasion the report noted that the amniotic fluid was normal and included the following:
"Diagnosis
Single live fetus at 27 weeks and 6 days gestation.
… Fetal hand extension movements seen. The profile again appears consistent with the mother and is normal.
There are no other signs of arthrogryposis or neuromuscular disorder.
We will review in 2 weeks' time.
An appointment has been made on:
14/3/13 …, correlating to the gestational age of 29+6."
The medical records for the RHW Maternal Foetal Medicine Department midwifery section on 28 February 2013 record:
"Couple seen by Prof Welsh today and considering amniocentesis as yet undecided, appt made for Friday 8/3/13 if required. Will take some further time to discuss and let us know next week. Aware parental bloods will be needed to accompany array testing."
The midwifery sections notes for 5 March 2013 record:
"Contacted [the first plaintiff] re-possible amniocentesis this week. Couple have decided to wait until 14/3/13 appt i/c Prof Welsh & discuss further +/- have amniocentesis at this appointment."
Prof Welsh carried out a further scan on 14 March 2013 and his report to Dr Hawke of the same date recorded that the amniotic fluid was normal. The report also included the following:
"Diagnosis
Single live fetus at 29 weeks and 6 days gestation.
Normal interval growth, AFI is 16 cm … Left talipes equinovarus persists. Movements of the fetal limbs are seen. Recent GTT was normal.
An appointment has been made on:
28.03.2013 …, correlating to the gestational age of 31+6."
The specific topics about which the defendant wishes to interview Prof Welsh, Dr Coogan and Dr Hawke are set out in orders 1 and 2 of the defendant's notice of motion. Orders 1 and 2 are set out in full in the appendix to these reasons.
In relation to Prof Welsh, the topics set out in order 1 for the proposed interview can be adequately summarised as follows:
1. in respect of the first occasion on which he conducted an ultrasound scan on the plaintiff:
1. what steps did he take to visualise the facial profile and the neck/spine;
2. what did he say to one or other or both plaintiffs concerning talipes and polyhydramnios;
3. what did he say to one or other or both plaintiffs concerning amniocentesis with micro-array evaluation and any proposed genetic review;
4. what interpretation did he make of the defendant's scans of 28 December 2012 and 13 February 2013?
1. in respect of each other occasion on which he conducted an ultrasound scan on the first plaintiff, all or some of the following:
1. what steps did he take to visualise, and what observations did he make of, the facial profile and the neck/spine;
2. what advice did he give one or other or both plaintiffs concerning amniocentesis with micro-array evaluation;
3. what did one or other or both plaintiffs tell him of their intentions concerning amniocentesis with micro-array evaluation?
In relation to Dr Coogan and Dr Hawke, the topics set out in order 2 for the proposed interviews can be adequately summarised as follows:
1. whether they reviewed the defendant's scans of 28 December 2012 and 13 February 2013 prior to AC's birth and what interpretation they made;
2. if so, what advice, if any, about those ultrasounds did they provide to one or other or both plaintiffs;
3. their conversations, if any, with "any member" of the Maternal Foetal Medicine team at RHW between 14 February and 9 April 2013;
4. their advice, if any, provided to one or other or both plaintiffs between 13 February and 9 April 2013 concerning amniocentesis or further investigations and any response.
It is also relevant to note the following dates in relation to the preparation of this matter for hearing and the proposed interviews:
1. on 14 October 2015, the proceedings were commenced by the filing of the statement of claim;
2. on 8 December 2015, the defendant's solicitors issued the subpoena to RHW;
3. on 15 December 2015 RHW produced the documents sought in the subpoena;
4. on 14 December 2017, the defendant's solicitors wrote to the plaintiffs' solicitors, seeking the plaintiffs' consent to the defendant's solicitors having a conference with Prof Welsh;
5. on 18 July 2018, the defendant's solicitors issued the subpoenas to Dr Coogan and Dr Hawke;
6. on 23 July 2018, the plaintiffs' solicitors wrote to the defendant's solicitors indicating that the plaintiffs would not provide their consent to interview proposed with Prof Welsh;
7. on 27 July 2018, Dr Coogan produced the documents sought in the subpoena but it is not clear when Dr Hawke produced the documents sought;
8. on 9 August 2018, the defendant's solicitors wrote to the plaintiffs' solicitors repeating their request for an interview with Prof Welsh and providing the list of topics they sought to cover in the interview;
9. on 13 February 2019, the substantive matter was listed for final hearing to commence on 2 March 2020, with an estimated length of hearing of fifteen days;
10. on 15 October 2019, the defendant's solicitors wrote to the plaintiffs' solicitors notifying them of the intention to make the application presently before the Court in respect of Prof Welsh and also seeking the plaintiffs' consent to interviews with Dr Coogan, Dr Hawke, Dr Anne Turner and Dr Jegajeeva Rao;
11. on 22 October 2019, the plaintiffs' solicitor wrote to the defendant's solicitors indicating that the plaintiffs did not consent to any interviews with any of the doctors;
12. on 25 October 2019, the defendant's solicitors filed the notice of motion in relation to the present application for a stay and declarations as to interviews with Prof Welsh, Dr Coogan and Dr Hawke;
13. on 30 October 2019, the defendant's solicitors wrote to each of Prof Welsh, Dr Coogan and Dr Hawke seeking an interview and explaining aspects of the present application;
14. on 12 November 2019, Prof Welsh in an email informed the defendant's solicitors:
"Regarding the above matter, I have sought independent advice regarding the possibility of provision of an interview conducted by Avant [the defendant's solicitors], as well is my availability for lawyers from Carroll & O'Dea [the plaintiffs' solicitors].
On balance, I think it best that I do not undergo interview prior to any future court proceedings. I am notifying you prior to your application to the Supreme Court for orders permitting this interview.
I hope that this does not cause too much inconvenience";
1. Neither Dr Hawke nor Dr Coogan has responded to a request from the defendant's solicitors for an interview.
In the circumstances, I infer that none of Prof Welsh, Dr Hawke or Dr Coogan is willing to be interviewed by the defendant's legal representatives. At this point, it can also be noted that it was common ground that the plaintiffs have not agreed to waive any duty of confidentiality owed to them by the medical practitioners in question.
The defendant's solicitors have subpoenaed each of Prof Welsh, Dr Hawke and Dr Coogan to attend and give evidence at the trial. [1]
It does not appear from the evidence before the Court on this application whether subpoenas to produce documents have ever been served on Prof Welsh, Dr Anne Turner or Dr Rao (who appears to have worked with or assisted Prof Welsh) and, if so, whether any documents have produced by them or what those documents, if any, contained.
There was no evidence that the defendant's various experts have been unable to give reports or been unable to express a suitably unqualified opinion because of the lack of the answers to the questions proposed to be put to Prof Welsh, Dr Hawke and Dr Coogan in the interviews. Nor was there any evidence from the defendant's solicitors as to any inability to prepare the case for trial without access to the information covered by the questions proposed for the interviews.
Finally, it can be noted that there has been no application to join any of Prof Welsh, Dr Hawke or Dr Coogan as cross-defendants in the proceedings. Nor has the defendant sought to join any of these medical practitioners for the more limited purpose of the present application.
[2]
Stay and interviews - submissions
The defendant relied upon the principles in Richards v Kadian (2005) 64 NSWLR 204; [2005] NSWCA 328 (Richards v Kadian) to support the contentions that he should be entitled to interview the Prof Welsh and Drs Coogan and Hawke and that the proceedings should be stayed until the plaintiffs waive any right to confidentiality which would stand in the way of those interviews being conducted.
It was submitted that Richards v Kadian, at [140] established that the defendant in this case bore the onus of establishing that a stay was necessary in the sense that although the defendant had access to the treating doctors' notes, without access to other information not contained in those notes, it was not possible to have a fair trial.
The defendant sought to distinguish the facts in the present case from those in Richards v Kadian by submitting that:
"the available treating records here comfortably demonstrate that it is likely, indeed highly likely, that Professor Welsh, Dr Coogan and/or Dr Hawke will have in their possession information going to both breach and causation issues between the plaintiffs and the defendant which is beyond that contained in the clinical records."
This contention was elaborated by the defendant in relation to the issue of breach by submissions that the defendant wished to find out:
1. what steps Prof Welsh took in conducting his ultrasounds because, if he complied with the applicable guidelines but reported that the spine was normal as he did in his 22 February 2013 report, this may well assist the defendant's case;
2. whether Prof Welsh interpreted the defendant's ultrasound scans as revealing foetal abnormalities or raising concerns as to the adequacy of the imaging because, if not, this would also assist the defendant's case.
As to the causation issue, while Prof Welsh's reports provide some information concerning discussions with the plaintiffs regarding amniocentesis with micro-array evaluation and genetic review, they do "not contain a verbatim transcript of the advice he gave and the response of the plaintiffs". The defendant submitted that it was plausible Prof Welsh could give further details of the conversations and this would bear significantly on the causation issue.
It was then submitted that a medical practitioner in the position of the defendant:
"is entitled to be properly prepared for a hearing by exploring and taking proofs of evidence about facts that may be raised in the course of the proceedings …. Public policy demands that this should be so. …"
[3]
Stay and interviews - consideration
At the outset it should be noted that the defendant did not put its case on the basis that in this matter there had been an express or implied waiver by the plaintiffs of the duty of confidentiality owed to them by their treating medical practitioners, including Prof Welsh, Dr Hawke and Dr Coogan. [2] Nor was there any challenge to the continued existence of that duty of confidentiality in each case. Accordingly, the principles relating to the enforcement of confidentiality obligations and waiver of confidentiality discussed by the Court of Appeal in Richards v Kadian are not directly relevant in this matter.
The fundamental order sought by the defendant is that the proceedings be stayed until the plaintiffs provide their consent to the defendant, through his lawyers, interviewing the medical practitioners in question. It is fundamental because it provides the foundation for the declarations that the defendant is permitted to interview the practitioners in relation to the topics specified in the orders. It was not in dispute that, absent the consent of the plaintiffs to the interviews, the medical practitioners would be prevented by their duty of confidentiality owed to the plaintiffs from answering the proposed interview questions.
Accordingly, it is appropriate to consider the stay order first and then turn to consider the declarations, to the extent required.
[4]
Stay order
It cannot be doubted that the Court has power to grant a stay in order to prevent injustice: s 23 of the Supreme Court Act 1970 (NSW); Richards v Kadian at [137]; Tringali v Stewardson Stubbs & Collett Ltd (1965) 66 SR (NSW) 335 at 344-5. The Court of Appeal observed in Tringali, at 344 (Wallace P, Jacobs and Asprey JJA):
"there can be no doubt that this Court has an inherent jurisdiction to endeavour to ensure that the pursuit of its ordinary procedures by litigants does not lead to injustice and for this purpose to grant in the exercise of its discretion a stay of proceedings, whether permanent or temporary, upon such conditions or terms (if any) as may seem appropriate in the particular circumstances and that this is a jurisdiction which may be exercised at any stage of the proceedings where it appears to be demanded by the justice of the case. However, it must always be borne in mind that a stay of proceedings should not be lightly granted."
The most recent, comprehensive consideration by the Court of Appeal of an application for a stay in similar circumstances is found in Richards v Kadian. In that case, a child had been born with a congenital heart disease but it was not diagnosed until he was nine months old. It was alleged that the paediatrician's failure to diagnose heart disease earlier caused irreversible damage. The child, by his tutor, and his parents commenced proceedings as plaintiffs against the paediatrician as well as the hospital where he had been born. The heart disease had been diagnosed when the paediatrician referred the child plaintiff to a paediatric cardiologist. The child plaintiff remained under the cardiologist's care during the following seven years. The child plaintiff also had a defective kidney which was diagnosed before he was born. He had been under the treatment of a paediatric nephrologist in respect of that condition.
After the paediatrician filed his defence but while the matter otherwise remained in the pre-trial phase, the paediatrician sought to interview the cardiologist and nephrologist as part of preparation of his defence. That course was opposed by the plaintiffs. As a result, an application was made in which the paediatrician sought: a declaration that, by commencing the proceedings, the plaintiffs had waived any right to confidentiality arising from the doctor/patient relation between them and the cardiologist and nephrologist; and, an order staying the proceedings until the plaintiffs provided authority permitting the cardiologist and nephrologist to discuss their management and treatment of him with legal representatives of the paediatrician. Alternatively or additionally, the paediatrician sought a direction that the plaintiffs file and serve witness statements at an early date, including statements from the cardiologist and nephrologist, if any.
[5]
Interviews
Declarations in relation to interviewing treating medical practitioners in professional negligence matters have been made in cases such as Coffey v Murrumbidgee Local Health District [2018] NSWSC 1538. In that case, however, the purpose of the declarations was to clarify that no obligation of confidentiality arose in relation to the topics that might be addressed in the interview. This is made obvious by the terms of the declaration which were as follows:
"Declare that the defendant, through its solicitors, is not prevented from interviewing Dr John Preddy in relation to his observations of, and the treatment and care provided to, the plaintiff on 19 January 2004 in Wagga Wagga Base Hospital and any facts, matters and circumstances related thereto by any relationship of confidentiality between Dr John Preddy and the plaintiff to the extent that such relationship existed."
The recent decision in Beerens v Biggs [2019] NSWSC 1707 is similar in that, in that case, it was held that no relationship of confidentiality existed at the relevant time in relation to the limited question of their pre-operative consultations with the plaintiff and other doctors and their involvement in surgery on 4 June 2014.
The potential appropriateness of declarations in order to clarify that no obligation of confidentiality exists in relation to the matters proposed to be discussed in interviews with treating doctors can be readily appreciated. Nonetheless, Coffey v Murrumbidgee Local Health District and Beerens v Biggs do not provide any useful analogy for the granting of declarations in the present case since it is not in dispute that there was and continues to be a relationship of confidentiality between the plaintiffs and Prof Welsh and Drs Coogan and Hawke.
In Beerens v Biggs, at [23], Fagan J also went further and appeared to suggest that, where a duty of confidentiality existed, a party who wished not to waive the duty of confidentiality owed to the party by treating doctors would be acting unreasonably. His Honour went on to say:
"I cannot see that anything was to be gained by the plaintiff obstructing the defendant from interviewing these potential witnesses. Whatever the reach of their obligation of confidence it could not prevail over their duty to answer questions if the defendant should subpoena them to give evidence at the trial: Richards v Kadian (2005) 64 NSWLR 204; [2005] NSWCA 328 at [85]. The maximum potential of the plaintiff's stance was that he might thereby disrupt and inconvenience the defendant and the Court if, when called, any of the three doctors should give evidence for which the defendant might be insufficiently prepared."
[6]
Summary of conclusions, costs and orders
Accordingly, my conclusions may be summarised as follows:
1. the plaintiffs should have leave to file their proposed further amended statement of claim, subject to an order that the plaintiffs pay the defendant's costs, if any, thrown away because of the amendment;
2. in relation to both the joint experts' conference and the witnesses to be called, in relation to breach of duty (including the s 5O of the Civil Liability Act issue), the defendant should be limited to calling evidence from no more than two of the relevant experts retained by the defendant;
3. in relation to the joint experts' conference concerning the breach and s 5O issues, it should, if possible, be conducted in two parts:
1. part 1 involving the defendant's two obstetricians and gynaecologists with a subspecialty in maternal foetal medicine and Drs Farine and Keenan, which addresses questions related only to radiology; and
2. part 2 not involving Dr Keenan, which addresses all of the other proposed questions concerning the breach of duty and s 5O issue,
but if a two part conference cannot be agreed between the parties, the joint experts' conference concerning the breach of duty and s 5O issue should be limited to the defendant's two obstetricians and gynaecologists with a subspecialty in maternal foetal medicine and Dr Farine;
1. as to the proposal for a joint experts' conference on the causation issue, I do not accept that such a conference is necessary or appropriate;
2. the defendant's application for a stay and declarations should be refused.
As to costs of the plaintiffs' motion, the plaintiffs should be ordered to pay any costs thrown away because of the amendment. Further, although he was unsuccessful, it was not unreasonable for the defendant to have opposed the application for leave to amend at this late stage and the plaintiffs were, in effect, seeking an indulgence from the Court because of the failure of their legal representatives to appreciate the availability of the causes of action under the Australian Consumer Law earlier. In addition, the plaintiffs have been only partially successful in relation to the directions sought for limitation of experts and joint conferences. In these circumstances, the costs of the plaintiffs' motion should be each party's costs in the cause.
Since the defendant has been entirely unsuccessful on his motion, the defendant should pay the plaintiffs' costs of that motion.
[7]
Orders 1 and 2 sought in the defendant's notice of motion 25 October 2019
That pursuant to sections 56 and 61 of the Civil Procedure Act and sections 192 and 192A of the Evidence Act, the court declares that the Defendant, through his lawyers, is permitted to interview Professor Alec Welsh in relation to:-
15 February 2013
(i) What steps Professor Welch took to visualise the facial profile and the neck/spine;
(ii) the particular causes for talipes and polyhydramnios that Professor Welch discussed with the plaintiffs and what he indicated as to the prospect of those causes being present in the first plaintiffs case and the consequences for the child (once born) if those causes were present;
(iii) What Professor Welch said to the plaintiffs regarding the need for amniocentesis with micro-array evaluation and whether he recommended such an investigation;
(iv) What Professor Welch said regarding the proposed genetic review in one week's time and what it might demonstrate;
(v) What interpretation Professor Welch made of the ultrasounds previously performed on 28 December 2012 and 13 February 2013 at Sydney Ultrasound for Women, provided they were given to him and he had reviewed them as at 15 February 2013.
22 February 2013
(i) What steps Professor Welch took to visualise the facial profile and the neck/spine;
(ii) What observations Professor Welch made in respect of the facial profile and the neck/spine;
(iii) What the plaintiffs told Professor Welch as to their intentions regarding micro-array evaluation and what, if any, advice he gave in respect of micro-array evaluation and/or amniocentesis.
28 February 2013
(i) What steps Professor Welch took to visualise the facial profile and the neck/spine;
(ii) What observations Professor Welch made in respect of the facial profile and the neck/spine;
(iii) What advice, if any, Professor Welch gave about amniocentesis with micro-array evaluation;
(iv) What the plaintiffs told Professor Welch as to their intentions regarding amniocentesis with micro-array evaluation.
14 March 2013
(i) What steps Professor Welch took to visualise the facial profile and the neck/spine;
(ii) What observations Professor Welch made in respect of the facial profile and the neck/spine;
(iii) What advice, if any, Professor Welch gave about amniocentesis with micro-array evaluation;
(iv)What the plaintiffs told Professor Welch as to their intentions regarding amniocentesis with micro-array evaluation.
28 March 2013
(i) What steps Professor Welch took to visualise the facial profile and the neck/spine;
(ii) What observations Professor Welch made in respect of the facial profile and the neck/spine;
(iii) What advice, if any, Professor Welch gave regarding amniocentesis with micro-array evaluation;
(iv)What the plaintiffs told Professor Welch as to their intentions regarding amniocentesis with micro-array evaluation.
[8]
Endnotes
T57.19-20.
T63.4-7.
Since the reported version of this judgment does not include [107] to [157] of the judgment (see Kadian v Richards (2004) 61 NSWLR 222 at 256), instead of using the case name to refer to this judgment, the medium neutral citation, [2004] NSWSC 382, is used, especially when the unreported paragraphs are being referred to but also in other situations.
The Court of Appeal did not find it necessary to determine whether this approach was correct: Richards v Kadian at [157].
See Kadian v Richards [2004] NSWSC 382 at [85] and [99]-[106] and Richards v Kadian at [140].
See Kadian v Richards [2004] NSWSC 382 at [98]; 61 NSWLR 222.
[9]
Amendments
03 December 2019 - Paragraph 163 - grammatical error corrected.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 December 2019
Parties
Applicant/Plaintiff:
AA
Respondent/Defendant:
Kesby
Legislation Cited (7)
Court Suppression and Non Publication Orders Act 2010(NSW)
Competition and Consumer Act 2010 (Cth)
Court Suppression and Non Publication Orders Act 2010 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
AS v Minister for Immigration and Border Protection (Ruling No 6) (2016) 53 VR 631; [2016] VSC 774
Beerens v Biggs [2019] NSWSC 1707
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25
Coffey v Murrumbidgee Local Health District [2018] NSWSC 1538
Kadian v Richards (2004) 61 NSWLR 222 at [94]; [2004] NSWSC 382
Karl Suleman Enterprizes Pty Ltd (In Liq) v Pham [2013] NSWCA 93
Nowlan v Marston Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346
PPK Willoughby Pty Ltd v Baird [2019] NSWSC 705
Richards v Kadian (2005) 64 NSWLR 204; [2005] NSWCA 328
Rosenberg v Percival (2001) 205 CLR 434, [2001] HCA 18
South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69
Sparks v Hobson [2018] NSWCA 29
Sydney South West Area Health Service v MD (2009) 260 ALR 702; [2009] NSWCA 343
Tringali v Stewardson Stubbs & Collett Ltd (1965) 66 SR (NSW) 335
Voitenko v Zurich Australian Insurance Ltd [2019] NSWCA 229
Category: Procedural and other rulings
Parties: AA (First Plaintiff)
AB (Second Plaintiff)
Leave to amend - submissions
The plaintiffs submitted that these proposed additional causes of action arose from the same facts as those giving rise to the existing causes of action pleaded in negligence and breach of contract. By way of example, it was contended that the failure to refer to foetal defects, such as sacral agenesis, in the defendant's reports was already pleaded as part of the negligence and breach of contract causes of action and that this is also the foundation for the allegation that the reports were misleading and deceptive. Similarly, the breaches of duty relied upon by the plaintiffs to establish negligence and breach of contract were also said to give rise to the failure to comply with the consumer guarantee that services would be provided with due care and skill and would be fit for purpose. It was submitted that the further amended statement of claim was intended to do no more than give an additional legal characterisation to the facts already pleaded, which were already the subject of evidence in the proceedings. The plaintiffs indicated that no further evidence was to be relied upon and the assumptions put to the experts did not require revision in the light of the proposed amendments.
Mr Higgs of Senior Counsel, who appeared with Mr O'Keefe for the plaintiffs, indicated that there was no proposed amendment in relation to the nature and amount of damages claimed, if the amendment were otherwise permitted. It was expressly noted that the damages claimed remained limited as set out in s 71 of the Civil Liability Act 2002 (NSW) (the CL Act).
The plaintiffs acknowledged that, if the causes of action under the ACL were added, s 5D(3)(b) would not operate so as to prevent the plaintiffs giving direct evidence of what they would have done, if the defendant's conduct complained of had not occurred. This is because the terms of s 5D(3)(b) indicate that it only applies in relation to claims in negligence: PPK Willoughby Pty Ltd v Baird [2019] NSWSC 705 at [8].
It was also submitted that there was no relevant prejudice to the defendant arising from the timing of the application to amend.
The plaintiffs explained that the delay in raising these additional causes of action was the result of oversight on the part of the legal representatives in that they did not turn their minds to whether the plaintiffs could rely on the provisions of the Australian Consumer Law in a case such as the present until reminded of that possibility by reading the PPK Willoughby judgment.
Mr Windsor of Senior Counsel, who appeared with Mr Downing for the defendant, opposed leave being granted to file the amended pleading. It was noted that the amended statement of claim had been filed on 1 March 2019, after the matter had been listed, on 13 February 2019, for hearing in 2020. It was pointed out that the PPK Willoughby judgment had been published in June 2019 and referred to previous judgments, one as early as 2010, in which the same issue had arisen.
Leave to amend - consideration
The principles concerning the exercise of the discretion whether to grant leave to amend based upon the Aon decision were not in dispute and it is not necessary to see them out in detail here. As the reasons in Aon indicate, at [102]-[103] and elsewhere, the most important considerations will usually include:
1. the nature and importance of the amendments to the party applying;
2. the delay and costs associated with making the amendments;
3. the explanation for the delay; and
4. any prejudicial effect on the opposing party.
As to the explanation for any delay, the comments of the Court of Appeal in Karl Suleman Enterprizes Pty Ltd (In Liq) v Pham [2013] NSWCA 93 should be borne in mind. In that case, Meagher and Barrett JJA said, at [22]:
"As the plurality judgment in Aon makes clear at [102] and [103], the exercise of the discretion to allow an amendment necessarily involves a weighing process in which factors for and against the grant of leave must be identified and considered. Those factors include, if there has been delay in applying for the amendment, an explanation for the delay. At [103], it was said that the importance attached by Rule 21 (which is set out in Aon at [60] and is in similar terms to ss 56(1) and 57(1) of the Civil Procedure Act 2005) to the factor of delay 'will require' in most cases that the moving party bring the circumstances giving rise to the amendment, and explaining the delay, to the Court's attention 'so that they may be weighed against the effects of any delay and the objectives of the Rules'. Those circumstances ought explain the delay, and in doing so may justify it, in the sense that they may provide reasons for it which are not consistent with any failure on the part of the moving party, or its legal advisers, to act diligently and expeditiously in the prosecution or defence of the relevant claim. If those circumstances provide some justification for the delay, for those or some other reasons, they may be weighed against the effects of the delay on the other parties, as well as on other litigants."
In Voitenko v Zurich Australian Insurance Ltd [2019] NSWCA 229 at [30], it was held that even where the explanation does not justify the delay, it is still a factor that should be weighed along with all other relevant factors in order to reach a conclusion as to how the discretion should be exercised.
In the present case, I accept that the amendments do not seek to raise or rely on any significant additional factual matters that have not already been pleaded. Rather, the amendments essentially involve pleading different legal characterisations of the facts already alleged. For example, the facts and circumstances relied upon to establish the alleged failure to comply with the consumer guarantees to render services with due care and skill or services that were fit for purpose, under ss 60 and 61 of the Australian Consumer Law do not appear to be materially different from the facts alleged to constitute the breach of duty and breach of contract. Similarly, the facts giving rise to the alleged contraventions of ss 18 and 29(1)(b) of the Australian Consumer Law appear to be generally a subset of the facts relating to the provision by the defendant of his reports and advice and what he is alleged to have failed to do in those regards, which were already pleaded.
Limitation of breach experts - submissions
The plaintiffs submitted that proper conduct of the matter did not require the defendant to rely on four expert witnesses from the same medical specialty and subspecialty on the same topic of breach of duty where the evidence overlapped or was repetitive. It was contended that reliance on four experts would increase the cost of the proceedings generally as well as increasing the time and expense involved in the joint expert conference. Reliance on four experts in this context was also said to be inconsistent with 56 to 60 of the CP Act.
The plaintiffs relied generally upon recent decisions such as those in Sparks v Hobson [2018] NSWCA 29 and South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69.
The defendant submitted that he was entitled to call witnesses to establish the pre-conditions necessary for the operation of s 5O of the CL Act. That required him to establish that the acted "in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice". He says that he has sought to do this by calling evidence from relevant peers practising in various parts of Australia. Furthermore, he relied upon the observation of Basten JA in Sparks v Hobson [2018] NSWCA 29 at [27].
The defendant also contended that, since the expert evidence in relation to breach and s 5O will be given concurrently, there will be little if any greater cost involved in having four defendant's experts rather than two, as sought by the plaintiff.
Causation experts' joint conference
In respect of the expert evidence to be called at the hearing on the causation issue, the plaintiffs sought an order that their expert, Dr Rowlands, and the defendant's expert Dr Amor, participate in a joint expert conference on causation addressing questions specified in the annexure to the amended notice of motion.
The plaintiffs submitted that questions 2 and 3 invited experts to provide some further detail and clarification which may assist the Court. It was also said that questions 4, 5, 6 and 7 related to medical literature and, if it is to be relied upon, it should be referred to in and explained by expert evidence. Although it was acknowledged that Dr Rowlands and Dr Amor had different areas of formal study and qualification, it was submitted that that they were both equipped to provide and did provide antenatal counselling. In any event, it was submitted that there was nothing to prevent experts' joint conferences between experts from different fields.
The defendant opposed this course on the bases that:
1. Dr Amor is a clinical geneticist whereas Dr Rowlands is an obstetrician and gynaecologist with a subspecialty in maternal foetal medicine;
2. the answer to a number of the questions proposed to be addressed were not in dispute;
3. while Dr Rowlands has addressed questions concerning relevant literature, Dr Amor was not asked to do so and has not done so;
4. an experts' joint conference in this case would serve little or no purpose.
In the present case, Dr Amor, a consultant to clinical geneticist, was provided with a hypothetical referral from the defendant and asked to provide a response detailing what he would have said to the plaintiffs and how he would have replied to the defendant. Dr Amor did so in the form of a hypothetical report notionally dated 18 January 2013 to the defendant concerning his examination of the first trimester ultrasound and serum screen and what he would have said to the plaintiffs as a result. Dr Amor does not refer to, and was apparently not asked to comment upon, any relevant literature.
Dr Rowlands, an obstetrician and specialist in maternal foetal medicine, was asked to address certain questions concerning Dr Amor's hypothetical report. Somewhat strangely, the form of her report dated 14 June 2019 answers only 11 questions numbered 10 to 20. It is not clear whether there were questions 1 to 9. Questions 10 to 18 each ask whether she agrees with certain aspects of Dr Amor's notional advice and in each case her response is "yes". In addition, in answer to questions 10, 11 and 12, Dr Rowlands provided some minor additional information but this does not derogate from the affirmative answer given to each of those questions. In addition, in questions 19 and 20 Dr Rowlands was asked to comment on published articles or her own experience concerning whether it was more likely than not that a woman would elect termination of pregnancy in certain circumstances relevant for present purposes. Dr Rowlands' responses to those questions are based on her own experience and, in particular, in relation to question 19 she states:
"this is based on my experience. There is no literature of which I am aware, that can provide statistical or objective evidence of this."
The defendant also submitted that requiring him to subpoena these witnesses to give evidence without a prior interview was akin to trial by ambush and was inconsistent with Pt 6 of the CP Act, especially ss 56, 57 and 58. Indeed, it was said that s 61 of the CP Act permits directions to made to so as to facilitate the interviews sought in the present case and, further, that justice required such interviews, relying on AS v Minister for Immigration and Border Protection (Ruling No 6) (2016) 53 VR 631; [2016] VSC 774 where it was held at [32]-[33]:
"Whilst there are many limitations to the disclosure of confidential information in pre-trial processes (such as those identified by Campbell J), the other side of the coin, now recognised in the CPA, is that Parliament requires the efficient conduct of litigation with concomitant effective use of judicial resources. The ultimate aim should be ensuring that justice is done between the parties as efficiently and inexpensively as possible.
It is clear that Parliament, by the enactment of the CPA and in particular ss 48 and 49, requires a court, as a matter of public policy in the judicial administration of proceedings, to take into account both pre-trial and trial processes in ensuring that the overarching purpose is fulfilled."
It was submitted by Mr Downing for the defendant that there was a real and identifiable public element in the efficient and expeditious administration of justice that outweighed the public interest in maintaining confidentiality and made it necessary for the obligation of confidentiality to be dispensed with.
In these circumstances, it was submitted that the proceedings should be stayed until the plaintiffs waived any right to confidentiality in respect of their communications with Prof Welsh, Dr Hawke and Dr Coogan and declaration should be made that the defendant was entitled to interview each of those practitioners in relation to matters relevant to the proceedings.
The plaintiffs submitted that the questions for the proposed interviews were not directly relevant to any issue in the proceedings nor were they necessary for the defendant to conduct his defence. It was noted that none of the experts relied upon by the defendant had stated that their opinions were incomplete for want of answers to the proposed interview questions.
The plaintiffs also contended that the defendant should not be entitled to obtain, in effect, further experts' opinions as a result of interviewing and then serving evidence from Prof Welsh, Dr Hawke or Dr Coogan. If further expert evidence were obtained in this way there would be more duplication and inevitable delay and prejudice to the plaintiffs. To the extent that the interviews were for the purposes of obtaining evidence as to what relevantly occurred or going to the credibility of the plaintiffs, interviews were unnecessary.
Finally, the plaintiff submitted that to the extent the evidence from these doctors might be relevant to the issue of causation, the record spoke for themselves.
At first instance, Campbell J held that the commencement of proceedings by the plaintiffs in that case did not lead to a waiver of their right to confidentiality arising from the doctor-patient relationship between them and the cardiologist and nephrologist: Kadian v Richards (2004) 61 NSWLR 222 at [94]; [2004] NSWSC 382. [3] His Honour also refused to grant a stay of proceedings until the plaintiffs provided permission for the cardiologist and the nephrologist to discuss the child plaintiff's treatment with the legal representatives of the paediatrician. It was accepted that the Court had power to grant a stay and it might be appropriate to make such an order where a party to litigation was using a right of confidentiality to keep hidden information which ought be available for the fair trial of the action: [2004] NSWSC 382 at [110]. It was further held, at [111], that the onus is on the party who seeks a stay to establish a prima facie case that there actually is information which is being kept secret from that party, that while it is kept secret a fair trial of the action will not occur, and that the circumstances are appropriate to exercise the significant power to grant a stay. Relevantly, at [149] and [153], Campbell J held that he was not persuaded that a fair trial would not be had without the paediatrician's lawyers ascertaining verbally from the cardiologist his recollection of what the adult plaintiffs told him or without lawyers talking to the nephrologist. It was held at that their desire to talk to the nephrologist was "nothing more than a fishing expedition".
It should also be noted that Campbell J held, at [99] that he would not have made the declaration concerning whether rights of confidentiality had or had not been waived, without the relevant doctors being joined and being given the opportunity to present such evidence and argument as they wished. [4]
In Richards v Kadian, the Court of Appeal dismissed an appeal from Campbell J's decision. In relation to the stay issue, Beazley JA (as her Excellency then was) held (Hodgson and Stein JJA relevantly agreeing) that there was no error in the trial judge's approach: Richards v Kadian at [141]. The general principle was stated as being that a stay may be granted so as to prevent injustice.
When that general principle is applied in the present case, it is relevant that, as in Richards v Kadian, the defendant contends that access to confidential information additional to that already available through subpoenas issued to the treating doctors is necessary for a fair trial. Thus the comments on the specific application of the general principle in Richards v Kadian also provide useful guidance in the present case.
The specific matters which it is helpful to consider in determining whether to grant the stay sought, pending the plaintiffs' consenting to the interviews, can be summarised as follows:
1. has the defendant established that there is a prima facie case that there actually is additional information which is being kept "secret" from the defendant: Richards v Kadian at [140]-[141]; [2004] NSWSC 382 at [111], where "secret" refers to material not available to the defendant, for example by subpoenaing records, by having the treating doctors give evidence in court, on discovery or possibly by interrogatories: Richards v Kadian at [129]-[131] and [140] and [2004] NSWSC 382 at [79]-[92] and [99]-[106];
2. whether, while that additional information is kept "secret", a fair trial of the action will not occur: Richards v Kadian at [140] and [155] and [2004] NSWSC 382 at [111]; and
3. whether, in all the circumstances, it is appropriate to exercise the significant power to grant a stay, thereby depriving the plaintiffs of their right to have their case determined if they do not wish to forgo the confidentiality of their communications with their treating medical practitioners: [2004] NSWSC 382 at [111] and Richards v Kadian at [156].
I shall deal with each of these matters in turn noting that, in doing so, the relevant requirements of Pt 6 Div 1 of the CP Act have been borne in mind.
First, as to whether the defendant has established a prima facie case that there actually is additional information which is being kept "secret" from the defendant, it is appropriate to consider initially the position of Prof Welsh separately from that of the other medical practitioners.
In Prof Welsh's case, there was no evidence that he had been subpoenaed to produce any documents, although a subpoena had been issued to RHW. Further, the evidence of the subpoena to RHW did not indicate what documents had been sought from that body. The documents produced by RHW included, among other things, Prof Welsh's reports. These reports had apparently been sent to Dr Hawke and also appear in the documents produced by her in response to the subpoena addressed to her. The other documents produced did not appear to include any of Prof Welsh's clinical notes or other records in relation to any of his scans of the first plaintiff or consultations or any other communications with the plaintiffs during the relevant period.
It is likely that Prof Welsh's clinical notes or other records relating to the plaintiffs during 2013 include information as to the steps he took in conducting his ultrasounds, his interpretation of the defendant's ultrasound scans and his discussions with the plaintiffs regarding the ultrasound scans, amniocentesis with micro-array evaluation and genetic review and other matters related to the treatment of the first plaintiff. This is, in essence, the information which the defendant seeks to elicit from Prof Welsh by way of the proposed interview.
In the absence of evidence of Prof Welsh being subpoenaed to produce his clinical notes or other records concerning the plaintiffs in 2013, it does not appear to me that the defendant has established a prima facie case that the additional information that Prof Welsh might be able to provide, which is relevant in these proceedings, is being kept "secret" from the defendant. Prof Welsh's clinical notes or other records of any of his scans, consultations or other communications in relation to the plaintiffs could have been, and can be made, obtained by the defendant by subpoenaing Prof Welsh to produce them. As a result, it cannot be concluded on the evidence before the Court at this stage that those records and the information they contain are relevantly "secret".
In the case of Drs Hawke and Coogan, their clinical notes have already been produced on subpoena. The information sought to be obtained from these two doctors by way of the proposed interview does appear to be additional to what is contained in their notes that have been produced.
However, if the clinical records produced by Dr Hawke and Dr Coogan and the clinical records which might be produced by Prof Welsh (if they were subpoenaed) do not provide all the information the defendant now seeks to obtain by way of the proposed interviews, it does not follow that the defendant has established a prima facie case that such information is being kept "secret" from him in the relevant sense of not being obtainable through legitimate litigious processes. In Kadian v Richards, Campbell J considered in some detail the various means of obtaining information in proceedings at [79] to [92] of [2004] NSWSC 382, in the related context of waiver of confidentiality. The means identified included most relevantly, in that case as they do in the present:
1. subpoenaing medical records;
2. calling the treating doctors to give evidence in court.
Campbell J at first instance and Beazley JA on appeal also mentioned discovery and interrogatories as potential means of obtaining relevant information in appropriate cases. [5]
Subpoenaing medical records has been discussed in relation to Prof Welsh. Substantial information has already been obtained by this means from Dr Hawke and Dr Coogan.
As to calling the treating doctors to give evidence in court, in this case the defendant has subpoenaed or intends to subpoena each of Prof Welsh, Dr Hawke and Dr Coogan to attend and give evidence at the hearing of this matter. In this regard, it is worthwhile quoting at some length relevant portions of Campbell J's comments in Kadian v Richards [2004] NSWSC 382 at [87] to [92] (which were endorsed by the Court of Appeal in Richards v Kadian at [140] in relation to the stay application, referring back to [128] to [131] dealing with the waiver argument):
"87 At common law, the obligation of confidentiality between doctor and patient does not entitle the doctor to decline to answer questions in court: R v Elizabeth Gibbons (1823) 1 Car & P 97; 171 ER 1117; Wheeler v Le Marchant (1881) 17 ChD 675 at 681; Garner v Garner (1920) 36 TLR 196; Attorney-General v Mulholland; Attorney-General v Foster [1963] 2 QB 477 at 489; Baker v Campbell (1983) 153 CLR 52 at 66, 75, 94, 128; D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218, 230, 237.
…
89 Further, it is always open to the defendant to subpoena the treating doctor, and call the treating doctor as a witness in the defendant's own case. If the obligation of confidentiality continues to bind the treating doctor, the defendant would need to call the treating doctor without the benefit of a conference before trial. One can readily understand how counsel would prefer not to be in a position of having to do this - but it is precisely that situation which arises whenever a witness has relevant information, and is not prepared to co-operate with a party who subpoenas him or her. It is not necessarily the case that if a defendant is in a situation of having to make a choice between calling the treating doctor without the benefit of a prior conference, and doing without the evidence of the treating doctor, that will amount to that defendant not having a fair opportunity to defend that action.
90 Section 126A Evidence Act 1995 (NSW) defines "protected confidence" as:
'protected confidence means a communication made by a person in confidence to another person (in this Division called the confidant ):
(a) in the course of a relationship in which the confidant was acting in a professional capacity, and
(b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.'
Section 126B Evidence Act 1995 (NSW) provides:
'Exclusion of evidence of protected confidences
(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:
(a) a protected confidence, or
(b) the contents of a document recording a protected confidence, or
…
(2) The court may give such a direction:
(a) on its own initiative, or
(b) on the application of the protected confider or confidant concerned (whether or not either is a party).
(3) The court must give such a direction if it is satisfied that:
(a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and
(b) the nature and extent of the harm outweighs the desirability of the evidence being given.
(4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters:
(a) the probative value of the evidence in the proceeding,
(b) the importance of the evidence in the proceeding,
(c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,
(d) the availability of any other evidence concerning the matters to which the protected confidence … relates,
(e) the likely effect of adducing evidence of the protected confidence … including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider,
(f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence … is disclosed,
(g) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the protected confidence … is a defendant or the prosecutor,
(h) whether the substance of the protected confidence … has already been disclosed by the protected confider or any other person.
(5) The court must state its reasons for giving or refusing to give a direction under this section.'
Section 126C Evidence Act 1995 (NSW) provides:
'Loss of professional confidential relationship privilege: consent
This Division does not prevent the adducing of evidence given with the consent of the protected confider concerned.'
Section 126F provides:
'Application of Division
…
(2) This Division applies in relation to a protected confidence within the meaning of this Division whether made before or after the commencement of this Division.
…
(4) The court may give a direction under this Division in respect of a protected confidence … whether or not the protected confidence … is privileged under another section of this Part or would be so privileged except for a limitation or restriction imposed by that section.'
91 The effect of these provisions, introduced in 1997, is that, even if Dr Sholler and/or Dr Lewis were to be called as witnesses in the proceedings, it would not be inevitable that any confidential information which they had received concerning Ankur would be able to be elicited in evidence.
92 But neither is it the effect of these provisions that confidential information which they had received concerning Ankur would not be able to be elicited in evidence - it is a matter for the decision of the trial judge. In a case such as the present, any confidential information which the treating doctors had concerning Ankur's condition, which was of importance for the resolution of the trial, would be likely to be the subject of a ruling allowing the evidence to be given. Even after the enactment of the "protected confidence" provisions of the Evidence Act 1995 (NSW), it remains the situation that, in some circumstances, being able to elicit certain items of information from a treating doctor orally in court might provide an adequate opportunity for a doctor sued for negligent treatment of a patient to defend himself or herself." (emphasis added)
Given the nature of the discretion inherent in s 126B of the Evidence Act and the relevant matters to be taken into account under that section, if the information that Prof Welsh and Drs Coogan and Hawke could provide is as significant and necessary as the defendant contends, there should be a reasonable prospect that the defendant will be entitled to elicit that information if those practitioners are called to give oral evidence at the hearing.
To this extent and having regard to the observations of Campbell J, I am not satisfied that the defendant has established a prima facie case that there actually is additional information that Prof Welsh and Drs Coogan and Hawke could provide but which is being kept "secret" from the defendant, in the relevant sense.
None of the parties in the present proceedings have sought to join any of Prof Welsh and Drs Coogan and Hawke nor has preliminary discovery been sought against any of them. The parties did not raise the question of whether discovery or interrogatories might be, or become, a further means of obtaining relevant information. Accordingly, it is not appropriate to address it in these reasons.
It can also be noted here that there appear to be other potential sources of relevant information of the type sought to be obtained by way of the proposed interviews that have not yet been explored by the defendant. The clinical notes and other potentially relevant documents have not been subpoenaed from Dr Anne Turner or Dr Rao, although they have, or may have, played a role in treating and advising the plaintiffs concerning the first plaintiff's pregnancy, scans and testing.
Since the relevant information may be obtained by subpoenaing Prof Welsh, Dr Turner or Dr Rao or by calling each of Prof Welsh, Dr Hawke and Dr Coogan or other persons to give evidence at the hearing, I do not accept that the defendant has established a prima facie case that there actually is relevant information that is being kept "secret" from him, in the sense that it cannot be obtained by legitimate, litigious processes in the context of these proceedings.
Secondly, even if (contrary to the conclusion I have reached) the defendant has established a prima facie case that the information sought to be obtained through the proposed interviews is being kept "secret" from him, it is necessary to consider more closely the nature of the information sought in order to determine whether a fair trial of the action could not occur without the additional information being provided to the defendant prior to the hearing.
The questions proposed to be addressed to Prof Welsh appear to be intended to elicit, in substance, the following information:
1. when carrying out his scans, what steps did he take to visualise the facial profile and the neck/spine;
2. how did he interpret the defendant's scans;
3. what was said in conversations between Prof Welsh and the plaintiffs concerning the scans, amniocentesis with micro-array evaluation and any proposed genetic review.
The information sought from Prof Welsh in the first two categories goes essentially to the breach issue. The last category appears to relate primarily to the issue of causation.
It can be accepted, as the defendant submitted, that if Prof Welsh complied with relevant standards or guidelines when carrying out his scans but reported that the spine was normal as he did in his 22 February 2013 report this may, in a practical sense, assist the defendant's case. If his evidence was not to this effect, it may not help the defendant. Even assuming for the sake of argument that Prof Welsh's information was of assistance, this does not establish, however, that a fair trial would not be possible without the defendant having the opportunity to obtain that information. What Prof Welsh may or may not have done and how he interpreted his scans is not directly relevant to what the defendant did or did not do and whether what the defendant did met the requisite standard, whether under s 5O or otherwise. The defendant knows precisely what he did, how he interpreted his scans and what he said to the plaintiffs and the referring doctors. The relevant expert witnesses to be called by the defendant have been able to express opinions concerning what the defendant did, his interpretation of the scans, the appropriate practices to be followed and standards to be applied and whether the defendant complied with the practices and standards. The information sought from Prof Welsh might, or might not, provide some limited confirmation of the expert's views but it cannot be concluded that such information is necessary to enable the defendant to prepare and present his case on breach.
Similarly, information that Prof Welsh interpreted the defendant's scan in the same way that the defendant did may provide practical support for the defendant's case, and contrary information may harm the case. It is apparent that the defendant's experts have considered that they have been able to express properly informed opinions on the correct interpretation of the defendant's scans without having information concerning Prof Welsh's interpretation of those scans. This information sought from Prof Welsh does not, in the circumstances, need to be made available now to the defendant in order for there to be a fair trial in relation to the issue of breach.
These conclusions are supported by the observation that none of the defendant's experts on breach have offered qualified opinions because of the unavailability of the information sought from Prof Welsh.
As to the information concerning Prof Welsh's advice to, and discussions with, the plaintiffs concerning the scans, amniocentesis with micro-array evaluation and any proposed genetic review, information in general terms was provided in his reports to Dr Hawke. Prof Welsh's clinical notes of these meetings have not been subpoenaed. In any event, even if the plaintiffs had expressed views, during consultations with Prof Welsh, contrary to their own case on causation as presently put and supportive of the defendant's case, these views could only be tentative. It would be the plaintiffs' conduct after testing and consultations with Prof Welsh and others that demonstrated what their actual attitudes and decisions were. The plaintiffs' relevant conduct is, or would be disclosed, in subpoenaed documentation and could be the subject of cross examination at the hearing. Consequently, it is not necessary for the defendant to obtain the information sought from Prof Welsh on the causation issue by way of the proposed interview in order for the defendant to be able properly to prepare his case.
The general proposition is that a stay may be granted so as to prevent injustice. In a case such as the present, preventing injustice may involve ensuring that a trial is fair by providing the defendant with a reasonable opportunity fully to prepare and present his case. It does not follow from this, however, that the defendant is entitled to interview before trial every witness who might be able to provide some potentially relevant information, not otherwise obtainable by legitimate, litigious processes. In the present case, the defendant has been able to prepare his case for trial on the causation issue as well as the breach issue. This is demonstrated by the fact that in February 2019 the matter was set down for hearing, presumably on the basis that it was, or would be, ready for trial in March 2020. No application was made for a stay and interviews prior to or at the time of the hearing date being fixed. Having regard to the nature of the information sought from Prof Welsh on the causation issue, the information available to the defendant as to the plaintiffs' attitudes and decisions from subpoenaed material and other sources, the fact that the plaintiffs and Prof Welsh will be called to give evidence at the hearing and the preparation of the proceedings up to this point, I do not accept that the defendant cannot have a fair trial on the causation issue or generally in this matter without his being entitled to interview Prof Welsh concerning advice to, and discussions with, the plaintiffs concerning the scans, amniocentesis with micro-array evaluation and any proposed genetic review, as proposed.
As to Dr Hawke and Dr Coogan, the defendant seeks to obtain information in the proposed interviews concerning: their interpretation of the defendant's scans; their discussions with the plaintiffs concerning those scans and amniocentesis or further investigations; and, their discussions with members of the concerning Maternal Foetal Medicine team at RHW. While this may be of interest to the defendant, it is far from obvious that such information is necessary for the preparation and presentation of the defendant's case, for essentially the same reasons given above in relation to Prof Welsh's evidence. In the case of Drs Hawke and Coogan, however, obtaining information from them by way of the proposed interviews appears to be of less significance than obtaining evidence from Prof Welsh. Prof Welsh has the same speciality and subspecialty as the defendant. Dr Hawke and/or Dr Coogan referred the first plaintiff to both the defendant and to Prof Welsh, as Maternal Foetal Medicine specialists, for ultrasound scanning and advice. Because of the issues detected by the defendant, it appears that the plaintiffs were then referred to Prof Welsh for, in effect, a second opinion. After being referred to him, the plaintiffs consulted Prof Welsh in relation to ultrasound and other testing, on a number of occasions, and took certain decisions concerning further testing and whether to terminate the pregnancy. Dr Hawke's and Dr Coogan's involvement included but did not extend substantially beyond receiving reports from Prof Welsh, discussing them with the plaintiffs and continuing to have responsibility for the first plaintiff's obstetric care.
Further and in particular, to have information concerning Dr Hawke's and Dr Coogan's interpretation of the defendant's scans is not necessary for the fair trial of the proceedings in relation to the breach issue. Those two medical practitioners do not have the same subspecialty qualifications as the defendant or Prof Welsh or the five maternal foetal medicine specialist witnesses whose reports have been served by the parties in these proceedings. Further, the defendant's four experts with relevant qualifications have been able to opine on breach issues without that information from Drs Hawke and Coogan.
As to the causation issue, while the conversations between the plaintiffs and Drs Hawke and Coogan might reveal information as to the plaintiffs' attitudes towards termination and other potential courses of conduct, that information is not necessary in order for the defendant to prepare and present his case for a number of reasons. First, the information may not assist his case. Secondly, the defendant already has information from the doctor's treating notes and Prof Welsh's reports to those doctors as well as information concerning the plaintiffs' actual decisions and conduct in the light of their consultations with Prof Welsh and others. Thirdly, the defendant has the options of: obtaining further information by subpoenaing the records of Dr Turner and Dr Rao; cross-examining the plaintiffs, if they give evidence, in the light of their conduct and the information already available; and, calling Drs Hawke and Coogan to give evidence at the trial.
This is not a case, as was contended by the defendant, in which requiring Prof Welsh, Dr Hawke and Dr Coogan to give evidence without a prior interview would be akin to trial by ambush. The authorities the defendant relied on in written submissions, Nowlan v Marston Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 and Sydney South West Area Health Service v MD (2009) 260 ALR 702; [2009] NSWCA 343 at [53], make clear that "trial by ambush" relates essentially to circumstances in which a party may be surprised by issues raised at trial for the first time. It is not primarily concerned with evidence adduced at trial in relation to issues which have been disclosed well prior to any final hearing and which all parties have had the opportunity to consider and address in evidence. In the present case, the issues have been identified for some time and there is unlikely to be any ambush involved in the final hearing of the matter. That a party in litigation may call or cross-examine a witness and not know precisely what their evidence will be is not anomalous or unusual and is not a basis for making the orders sought by the defendant in this case.
In all the circumstances, I am not persuaded that unless the defendant is allowed to interview Prof Welsh, Dr Hawke and Dr Coogan on the topics proposed there cannot be a fair trial of this matter.
Indeed, if the defendant's submissions in this regard were correct, it would run perilously close to accepting propositions that: in order to have a fair trial, every party must have the opportunity prior to hearing to interview any potential witness who is likely to have relevant information, not otherwise available, in order to establish whether the potential witness's answers would assist the party's case; and, that a stay may be granted until such interviews are permitted to take place. If such an approach were adopted, the potential adverse consequences for the orderly and timely determination of proceedings would be significant.
For all of these reasons, in my view, the power to grant a stay is not enlivened in the present case because there is no relevant injustice which a stay would be necessary, or would assist, to prevent.
Finally, if I am wrong and the power to grant a stay has been enlivened, balancing relevant matters or factors I would not conclude that a stay should be granted for a number of reasons.
First, the injustice that might arise in the present matter if the defendant is not permitted to interview Prof Welsh and Drs Hawke and Coogan is not overwhelming, as demonstrated by the defendant's being able to prepare his case to a sufficient extent that he has been able serve his experts' reports and other evidence and was prepared to accept, some nine months ago, that the matter should be listed for hearing in March 2020.
Secondly, the defendant has been aware of the allegations against him since October 2015 and has had the benefit of the documents produced on subpoena by RHW since 15 December 2015 and those produced by Drs Coogan and Hawke since about July 2018. As a result, the defendant was well aware of the circumstances that have given rise to the present application for a considerable time prior to the application being made.
Thirdly, the defendant's solicitors first raised the issue of having an interview or conference with Prof Welsh in December 2017 but did not seek any orders in this regard until 25 October 2019. Interviews with Drs Coogan and Hawke were only sought for the first time in October 2019. No sufficient explanation for the delay in bringing the application has been given.
Fourthly, unlike the situation in Kadian v Richards, the defendant has left the present application to the last moment, after the preparation of the matter for hearing has been largely completed and the plaintiffs have incurred significant expense and spent considerable time in preparation. To impose a stay now would potentially subject the plaintiffs to very significant prejudice, especially since they are under no legal obligation to waive any right they have to maintain the confidentiality of their dealings with their treating medical practitioners and they do not consent to the interviews. In the circumstances and unless the plaintiffs agree to consent to the interviews, the prejudice includes:
1. effectively depriving the plaintiffs of the right to have an entirely legitimate claim for relief determined by the Court in accordance with law; and
2. effectively causing the plaintiffs to lose all the benefit of the time and expense already expended in preparation of the matter to date.
Fifthly, a stay would serve little if any purpose. Even if the plaintiffs consented, there is no legal obligation on Prof Welsh or Drs Coogan and Hawke to submit to being interviewed by the defendant's legal representatives in these proceedings. Prof Welsh has indicated an unwillingness to be interviewed. From the circumstances of the present case and their lack of response to the defendant's solicitors' letter of 30 October 2019, I have inferred that Drs Coogan and Hawke are likely to be similarly unwilling to be interviewed by the defendant's legal representatives. Consequently, even if a stay were granted, it is most unlikely that any interviews would actually take place.
Finally, it appears to me that granting a stay as sought at this stage of the proceedings and in all the circumstances referred to above would not be likely to assist to any significant extent the just determination of the proceedings or their efficient or timely disposal. Nor do I accept that seeking to act in accordance with the dictates of justice requires a stay to be granted in this case. Indeed, in my view, the just, quick and cheap resolution of the real issues in these proceedings requires a decision to refuse to grant a stay. In other words, ss 56, 57, 58 and 59 of the CP Act provide no substantial support for the defendant's position but rather indicate that a stay should not be granted.
For all of these reasons and taking into account the circumstances set out in the background to the application referred to above, it would not be appropriate to exercise the significant power to grant a stay in the present case and at this stage of proceedings.
I do not accept that this reasoning is applicable in the present case or should be accepted as generally applicable in cases where an obligation of confidentiality exists and the party does not wish to waive confidentiality. Sections 126A to 126F of the Evidence Act establish a regime to protect confidential information in such situations. In the circumstances set out in s 126B(3) (which is quoted above), the Court must give a direction that evidence that would disclose protected information not be presented. This being so, the protection afforded by s 126B in having the Court, in effect, supervise the nature and extent of disclosure of protected information means that there is something to be gained by a party not agreeing to waive confidentiality so as to permit unsupervised interviews of witnesses concerning otherwise protected information. These provisions of the Evidence Act indicate that there is a public interest in preserving the confidentiality of protected information, except where the nature and extent of the harm that might be caused by disclosure is outweighed by the desirability of the evidence being presented. Thus, it is essential that any disclosures of protected information occur under the direct supervision of the Court rather than in out of court interviews which have only been possible because the party entitled to the benefit of the duty of confidence has been confronted with the choice of having the party's proceedings stayed or waiving confidentiality without the opportunity to have a Court consider whether the information should be allowed to be presented in evidence, under s 126B.
Furthermore, in the present case, there is no real use likely to be served by making the declarations proposed in prayers 1 and 2, given that a stay is not appropriate and the plaintiffs are unwilling to consent to the interviews with Prof Welsh and Drs Coogan and Hawke being conducted in relation to the topics identified in prayers 1 and 2 of the notice of motion of 25 October 2019 (set out in the appendix to these reasons).
Indeed, and in any event, if the declarations were made, as sought, they have the potential to mislead Prof Welsh and Drs Coogan and Hawke into thinking that the Court was indicating that they are under a legal obligation to submit to interviews with the defendant's legal representatives on the topics specified, when this is not the case. If such declarations were otherwise appropriate, it would be necessary to indicate in some suitable way that the medical practitioners named in the declarations are not required to submit to interviews on those or any other topics if they do not wish to do so for any reason.
In addition, in this case, the medical practitioners affected by the declarations have not been joined nor have they been given the opportunity to present such evidence and make such submissions as they may have wished in relation to the declarations. This is significant in the present case because it might have provided, among other things, definitive clarification as to whether the medical practitioners were willing or unwilling to be interviewed. Until the medical practitioners were, at least, given such an opportunity, I would not be prepared to grant the declarations in any event. [6]
For these reasons, I refuse to grant the declarations sought in the defendant's notice of motion.
Accordingly, the orders and directions of the Court are as follows:
In relation to the plaintiffs' application brought by the amended notice of motion filed on 20 November 2019:
1. The plaintiffs have leave to file their proposed further amended statement of claim.
2. The plaintiffs are to pay the defendant's costs, if any, thrown away because of the amendment, as agreed or assessed.
3. The defendant is limited to relying on the evidence of two of the experts retained by the defendant, for the purposes of both the joint experts' conference and the witnesses to be called, in relation to the breach of duty issue (which includes the s 5O of the Civil Liability Act issue).
4. On or before a date agreed between the parties, a joint experts' conference concerning the breach of duty issue (which includes the s 5O of the Civil Liability Act issue), is to be conducted, if possible, in two parts:
1. part 1 involving the defendant's two obstetricians and gynaecologists with a subspecialty in maternal foetal medicine and Drs Farine and Keenan, which addresses questions related only to radiology; and
2. part 2 not involving Dr Keenan, which addresses all of the other questions concerning breach of duty set out in the attachment to the amended notice of motion,
but if a two part conference cannot be agreed between the parties, the joint experts' conference concerning breach of duty is to be limited to the defendant's two obstetricians and gynaecologists with a subspecialty in maternal foetal medicine and Dr Farine, dealing with all of the questions concerning breach of duty which either party wishes to have considered by the experts.
1. A joint report is or joint reports are to be delivered to the Court and the parties on a date to be agreed between the parties.
2. The costs of the application are to be each party's costs in the cause.
3. The parties have liberty to apply on 2 days' notice if the parties cannot reach agreement or there are other difficulties in relation to the orders and directions in (4) and (5) above.
In relation to the defendant's application brought by the notice of motion filed on 25 October 2019:
1. The application is dismissed.
2. The defendant is to pay the plaintiffs' costs of the application as agreed or assessed.
That pursuant to sections 56 and 61 of the Civil Procedure Act and sections 192 and 192A of the Evidence Act, the court declares that the Defendant, through his lawyers, is permitted to interview Dr Wendy Hawke and/or Dr Stephen Coogan in relation to:-
(i) Whether Dr Hawke and/or Dr Coogan reviewed the 28 December 2012 or 13 February 2013 ultrasounds done on [AA] at Sydney Ultrasound for Women at any time prior to the birth of [AC] and if so, what interpretation was made of the ultrasounds;
(ii) If Dr Hawke and/or Dr Coogan reviewed the 28 December 2012 and/or 13 February 2013 ultrasounds as per (i) above prior to 9 April 2013, whether they provided any advice to [AA and/or AB] about the ultrasound appearances and if so, the effect of that advice;
(iii) Whether Dr Hawke and/or Dr Coogan held a discussion with any member of the maternal foetal medicine team at the Royal Hospital for Women regarding [AA's] pregnancy between 14 February 2013 and 9 April 2013 and if so, details as to who the conversation was with and the effect of the conversation;
(iv) Whether Dr Hawke and/or Dr Coogan provided advice to [AA and/or AB] at any time between 13 February 2013 and 9 April 2013 as to the performance of amniocentesis on [AA] and if so, the effect of that advice and the effect of any response from [AA and/or AB];
(v) Whether Dr Hawke and/or Dr Coogan provided any advice to [AA and/or AB] between 13 February 2013 and 9 April 2013 regarding further investigations or tests that [AA] might undergo in relation to her pregnancy and if so, the effect of that advice and any response by [AA and/or AB].
It was agreed that notice of the proposed amendments had been given on 22 October 2019.
The defendant submitted that the ability of the plaintiffs to give direct evidence, unconstrained by s 5D(3)(b) of the CL Act, of what they would have done if there had been not contravention of ss 18 or 29(1) or if there had been no failure to comply with the consumer guarantees under ss 60 and 61 of the Australian Consumer Law was a significant, late alteration which caused the defendant prejudice. This was said to be because the defendant would need to make enquiries of other persons as to the likely approach of the plaintiffs if they had been informed of the relevant matters alleged. That these enquiries would have to be made four months out from the hearing and over the Christmas and New Year break was said to interfere with the orderly preparation of the proceedings.
The defendant relied upon the principles in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon).
In written submissions, the defendant also opposed the grant of leave to amend on the bases, among others, that:
1. further evidence would be required both as to breach and causation;
2. proposed new pars 71, 72 and 73 could not be understood;
3. proposed new par 82(c) was "defective"; and
4. it would delay the experts' joint conferences.
The significance of the proposed amendments appears to include that under ss 18 and 29 of the Australian Consumer Law, there is no need to establish intent or negligence on the part of the defendant if his conduct was misleading or deceptive or likely to mislead or deceive or if any relevant representation was false or misleading. In addition it can be noted that, in relation to the issue of whether any loss and damage was caused by the defendant's contraventions of the Australian Consumer Law or failure to comply with the consumer guarantees, s 5D(3)(b) of the CL Act does not operate to restrict the admissibility of statements made after the harm was suffered about what the plaintiffs would have done if the contraventions had not occurred or if the guarantees had been complied with: PPK Willoughby.
It can be accepted that the proposed amendments should have been included in the amended statement of claim filed on 1 March 2019, if not in the original pleading. Thus, there has been a delay of at least 7 months. An explanation for not including the proposed amendment in either of the earlier pleadings has been given. It is that the potential availability or significance of causes of action under the Australian Consumer Law escaped the attention of the plaintiff's legal representatives. While it may not be an entirely satisfactory explanation, it is not something for which the plaintiffs personally should be held responsible.
It is difficult to perceive, in the circumstances where no new evidence is to be relied upon by the plaintiffs and where there does not appear to be any need for additional reports from expert witnesses, that there would be substantial additional costs or delay flowing from the amendments. Further, since no aspect of the existing pleading has been abandoned, it is not apparent that there would be any costs thrown away if leave to amend were granted. Nonetheless, in case there are some such costs, if leave to amend is given there should also be an order that the plaintiffs pay the defendant's costs thrown away because of the amendment.
The defendant did not provide any evidence of particular prejudice which it was said that he would suffer if the amendment were allowed. Although it was submitted that further evidence as to both breach and causation would be required, no specific, further evidence was identified in submissions apart from evidence going to causation, namely, evidence to meet any statements by the plaintiffs now admissible despite s 5D(3)(b). The difficulty with this latter submission is that causation was already in issue before the proposed amendments and the defendant was already required to address it. While the plaintiffs' evidence might now be enhanced by their statements as to what they would have done if the ACL had been complied with, the defendant faces the same necessity to adduce evidence in this regard as existed prior to the proposed amendment. Furthermore, the nature of the evidence that the defendant could rely upon has not changed. Accordingly, I do not accept that the amendment would cause the defendant prejudice to any material extent in relation to his evidence going to causation.
Taking into account the absence of evidence of specific prejudice, the nature and effect of the proposed new pleadings and the submissions, this does not appear to be a case where the defendant will suffer very significant prejudice if the amendment is allowed.
Finally, I do not understand why it is said on the defendant's behalf that proposed new pars 71, 72 and 73 could not be understood. They appear to me to be comprehensible and not embarrassing, in a technical sense. Further, proposed new par 82(c) is only "defective" in that there is a typographical error in that it should be labelled "(a)", being the first and only particular given, and not "(c)". I also do not accept that allowing the amendments would delay the experts' joint conferences, which are dealt with later in these reasons.
Balancing all of the factors referred to above and seeking to act in accordance with the dictates of justice set out in s 58(2) of the CP Act, I am of the view that leave to file the further amended statement of claim should be given, subject to an order that the plaintiffs pay the defendant's costs, if any, thrown away because of the amendment. In doing so, it should be understood that such leave is given on the bases that:
1. the plaintiffs do not intend to lead further evidence beyond what has been served in accordance with the directions already made for the preparation of the matter for hearing; and
2. the nature and extent of the damages claimed by the plaintiff is not intended to be changed by the amendments.
By a letter dated 6 August 2019, it appears that Dr Rowlands was asked supplementary questions and was provided with an article published in Prenatal Diagnosis in 2015 by Maxwell et al. In her response Dr Rowlands refers to two articles that she has provided to the plaintiff's solicitors in response to their questions and a link to other articles.
The first question in the questions proposed for the experts' joint conference deals with formalities. The second and third questions cover matters about which there is no dispute but seeks some very limited further information. The remaining four questions all relate to articles concerning termination of pregnancy is in the case of foetal abnormalities and the proportion of patients who have chosen terminations.
In a case such as the present, causation is to be determined subjectively, whether the liability arises in negligence, in contract or under the ACL: s 5D(3)(a) of the CL Act; Rosenberg v Percival (2001) 205 CLR 434, [2001] HCA 18 at [24]-[25] (McHugh J); Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at [26]-[28] (French CJ). In these circumstances, evidence of statistics as to unidentified persons' expressed intentions as to what they would choose to do if given certain advice can be of little, if any, assistance to the Court in determining what the plaintiffs in the present case would have done.
Given that:
1. there does not appear to be any substantial area of dispute between Dr Amor and Dr Rowlands concerning the matters dealt with in Dr Amor's hypothetical report and thus an joint experts' conference in that regard would serve little purpose;
2. Dr Amor has not commented on any of the articles referred to in the proposed questions and Dr Rowlands has only commented on one of those articles and it is not clear what Dr Amor's experience or knowledge of any relevant literature is;
3. what the plaintiffs would have done in this case is to be determined subjectively, not objectively; and
4. the different fields of expertise of the two experts,
I am not satisfied that it is either necessary or appropriate to direct that Dr Rowlands and Dr Amor participate in an joint experts' conference in this matter. Once again, it remains the case that, should the trial judge take a different view, an joint experts' conference could be organised and conducted within a short time, especially given the confined areas of dispute, if any, between the two witnesses.
For these reasons, I do not propose to direct that there be an experts' joint conference in relation to the causation issue.