(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted."
16 On the present state of the evidence I do not consider that I am in a position to express even a tentative view about whether or not the defendant was negligent or breached his duty to the plaintiff or more particularly that he acted in a manner which, at the time his professional service was provided, was widely accepted in Australia by peer professional opinion as competent professional practice. In my opinion it is inappropriate in these circumstances on an application such as the present to comment in terms that may appear to suggest a view of the probable or likely outcome of the proceedings. Clearly enough a conclusion that I was satisfied, if the proceedings went to trial, that the plaintiff would obtain judgment for substantial damages against the defendant would be an expression of an opinion about the likely outcome of the proceedings. That is what the subsection both contemplates and requires. However, none of the medical experts has been cross-examined, nor has any of them given evidence in the witness box before me. I am unable to make any proper or meaningful assessment of the competing views of the experts on each side other than to observe that there is a conflict between them. I cannot presently resolve that conflict. I cannot by the same token be satisfied that the plaintiff would, not merely might, obtain judgment against the defendant.
17 The commentary to the section in Ritchie's Uniform Civil Procedure includes the following:
"Obtaining satisfaction that the plaintiff would obtain judgment does not involve determining the issue of liability. The court is required to satisfy itself that that the plaintiff is likely to succeed according to the ordinary standard of the balance of probabilities. What that standard will require in any particular case must obviously depend upon the individual circumstances, but in determining whether the plaintiff has discharged its onus it will be proper for the court to have regard to the uncertainties of litigation and to require satisfaction 'towards the top of the flexible scale' of the civil burden of proof: Ricci Burns Ltd v Toole [1989] 1 WLR 993; Schott Kem Ltd v Bentley [1991] 1QB 61; [1990] 3 All ER 850; Frellsen v Crosswood Pty Ltd (1992) 15 MVR 343. There have been conflicting views expressed as to whether refusal of summary judgment precludes the satisfaction necessary to justify an interim payment. . . Perhaps the true position is that much will depend on the reason for refusing summary judgment. If the refusal is based on affirmative evidence tending to show a reasonably arguable defence, the same evidence would tend to preclude the satisfaction necessary to justify interim payment. On the other hand, a discretionary refusal of summary judgment, based on the inappropriateness of summary determination of the proceedings, may not preclude satisfaction about the plaintiff's probable entitlement to judgment."
18 In Frellsen v Crosswood Pty Ltd (1992) 15 MVR 343, where the plaintiff was injured in a motor vehicle accident, the transcript of the evidence from the trial of the second defendant on a charge of dangerous driving suggested that he had not been keeping a proper lookout, which would justify a finding on the balance of probabilities that a tribunal of fact would find against him. Sully J made an order for interim payment under s 76E of the Supreme Court Act 1970. Such a conclusion appears to have been wholly uncontroversial in that case.
19 In my opinion, this case is different. The present case is more akin to one where there is affirmative evidence, in the nature of expert medical opinion from Dr Gallagher, that tends to show a reasonably arguable defence, whatever may be its ultimate fate when properly exposed to thorough forensic and judicial scrutiny. This is not a case where the evidence promotes one result over another as inevitable or highly likely or obvious. The facts do not alone speak to the result in the proceedings without the benefit of the evidence from experts to assist the Court to understand what those facts mean. The existence of the conflict in this case between those experts is sufficient in my opinion to dispose of the present application. I am unable to be satisfied at this stage that if the proceedings went to trial the plaintiff would obtain judgment for substantial damages against the defendant.
20 The affidavit material filed by the defendant discloses correspondence that includes a reference to the question of the costs of this application. Counsel for the defendant also sought costs in her submissions before me in the event that the plaintiff was unsuccessful. However, in my opinion this is a case in which the costs of the application should abide the outcome of the trial. If the defendant is eventually successful that will equate to a justification for having opposed the plaintiff's application for an interim payment and costs will in all likelihood follow that event. On the other hand, if the plaintiff is successful at the trial, it will demonstrate that the present application was founded upon a case in which the plaintiff was by definition able to establish an entitlement to damages against the defendant. The evidence before me, to which it has been unnecessary to refer, suggests that the plaintiff's damages in the event of her success in the proceedings would be substantial.
21 I consider that the costs of the plaintiff's application for an interim payment should be costs in the proceedings.
22 I indicated when I reserved my decision in this application that the question of an expedited hearing should await my determination. There are considerable factors tending to suggest that the present proceedings should be heard as soon as possible. I would therefore invite the parties to address me on this matter at some time convenient to the parties and to the Court to be arranged in consultation with my Associate.