• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Hearing dates: 23 July 2026

Date of orders: 7 August 2026

Decision date: 07 August 2026

Jurisdiction: Common Law

Before: Sirtes J

Decision: (1) The time for service of the Plaintiff’s expert evidence on liability is extended to 16 April 2026, pursuant to r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
(2) The Plaintiff has leave to rely upon the reports of Dr Robert Buist dated 18 March 2026 and 2 April 2026.
(3) The Plaintiff has leave to file the Amended Statement of Claim in the form attached to the Notice of Motion filed 11 June 2026 and marked “Attachment A”, pursuant to s 64 of the Civil Procedure Act 2005 (NSW).
(4) The Court directs, pursuant to UCPR r 31.24, that the parties’ liability experts, Dr Robert Ford and Dr Robert Buist, are to confer within two months after the Defendant has furnished any expert liability evidence in reply to Dr Buist.
(5) The Plaintiff is to pay the Defendant’s costs thrown away by reason of the amendment.

Catchwords: CIVIL PROCEDURE – application to rely on fresh expert evidence – whether expert shopping – where fresh evidence likely to narrow claim
CIVIL PROCEDURE – pleadings – application to amend statement of claim – where application depends upon whether leave to rely on further expert evidence is granted

Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58, 64
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 60
Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 31.24

Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd [2026] FCAFC 16
Guntrip v Cheney Coaches Ltd [2012] EWCA Civ 392

Category: Procedural rulings

Parties: Vhari Johnstone (Plaintiff)
South Western Sydney Local Health District (Defendant)

Representation: Counsel:
GW Diehm KC / A Bartolo (Plaintiff)
T Harris-Roxas (Defendant)
Solicitors:
McInnes Wilson Lawyers (Plaintiff)
McCabes Lawyers (Defendant)

File Number(s): 2024/00141510

JUDGMENT

1. By Notice of Motion filed 11 June 2026 the Plaintiff in these proceedings seeks leave to amend her Statement of Claim pursuant to s 64 of the Civil Procedure Act 2005 (NSW) (CPA). The proposed Amended Statement of Claim is attached to the Notice of Motion as “Attachment A”.

2. The Plaintiff also seeks the following orders:

3. the time for service of the Plaintiff’s expert evidence on liability is extended to 16 April 2026 pursuant to r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR);

4. the parties’ liability experts, Dr Robert Ford and Dr Robert Buist, to confer within two months after the Defendant has furnished any expert liability evidence in reply to Dr Buist pursuant to UCPR r 31.24; and

5. costs be reserved.

6. The Defendant opposes the application.

Background

4. The substantive proceedings commenced by the Plaintiff allege the Defendant was negligent in using forceps during the delivery of the Plaintiff’s son. The child was born on 9 August 2020 in Bowral and District Hospital. The Plaintiff alleges that, as a consequence of the use of forceps, she has suffered various physical and other injuries with significant sequelae.

5. The Plaintiff also claims the Defendant breached the statutory guarantee under the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 60. That section imposes a guarantee that a person supplying services to a consumer in trade or commerce will render those services with due care and skill.

6. The application must be considered in the context of the litigation commenced by Statement of Claim on 16 April 2024.

7. The Plaintiff has thus far served on the Defendant a total of four reports from Professor Michael O’Connor. The reports are dated:

8. 9 April 2024;

9. 7 August 2024;

10. 14 February 2025; and

11. 22 September 2025.

12. On 15 September 2024, the Plaintiff served three further reports, authored by Dr Alan Meagher, Dr Axel Estensen and Dr Stephen Gibson. The report of Ms Lindy Williams was served on the Defendant on 31 October 2024.

13. The Defendant served the report of Dr Robert Ford on the Plaintiff on 24 September 2024. A supplementary report of Dr Ford was served on the Plaintiff on 31 March 2026. Dr Ford’s reports are in response to those of Professor O’Connor.

14. Pleadings closed on 24 September 2024 upon the Defendant’s filing and serving its Defence.

15. At the directions hearing before Registrar Hedge on 11 February 2025, the Court noted that the parties had completed service of their expert liability evidence. This proved optimistic. The Defendant was ordered to complete service of its quantum evidence by the 9 April 2025 and was directed to arrange and participate in a mediation by 20 June 2025. None of this occurred within the time ordered. Rather, from February to May 2025, further expert evidence was served. That evidence included the second supplementary report of Professor O’Connor dated 14 February 2025, although it was served on 20 March 2025.

16. At the subsequent directions hearing on 27 June 2025, Registrar Hedge extended the time by which the mediation was to take place to 29 August 2025. The mediation took place on 18 August 2025 but did not resolve the proceedings.

17. At the directions hearing on 10 September 2025, the sixth directions hearing in these proceedings, the Plaintiff was directed to serve any further liability expert evidence from Professor O’Connor by 15 November 2025. The Defendant was directed to serve any further expert liability evidence in reply from Dr Robert Ford by 16 February 2026. A third supplementary report of Professor O’Connor was obtained on 22 September 2025. However, that report was only served on 14 November 2025. The reasons for the delay are not apparent to me. The Defendant served a supplementary report from Dr Ford thereafter.

18. On 20 February 2026, the seventh directions hearing in these proceedings took place before Registrar Hedge. It appears that at those directions the Plaintiff raised, for the first time, her intention to serve further obstetric evidence and a proposed Amended Statement of Claim. The Registrar directed that this material be served by 20 March 2026. Thereafter, if a consent position giving effect to filing either or both the further report and Amended Statement of Claim was not forthcoming, the Plaintiff was to file a Notice of Motion by 10 April 2026. The time for compliance with those orders was subsequently extended.

19. The events which occurred between the seventh directions hearing and the date of hearing this Notice of Motion may be summarised as follows:

20. on 16 April 2026, the Plaintiff served two reports of Dr Buist, dated 18 March 2026 and 2 April 2026, together with the proposed Amended Statement of Claim;

21. Registrar Hedge made further orders to those made on 20 February 2026 in relation to the Defendant’s opposition to the report of Dr Buist and the proposed Amended Statement of Claim;

22. on 22 May 2026, the Plaintiff’s solicitors advised the Defendant’s solicitors that the Plaintiff proposed to rely on Dr Buist’s report of 18 March 2026 in its entirety, most of Dr Buist’s supplementary report of 2 April 2026 and Professor O’Connor’s report of 9 April 2024 (limited to certain paragraphs) and his report of 14 February 2025 limited to the section on whole person impairment assessments; and

23. the Defendant indicated, shortly thereafter, that it did not consent to reliance on Dr Buist’s reports, nor the further particulars of negligence or the further cause of action contemplated in the proposed Amended Statement of Claim.

24. In total, between 17 April 2024 and 16 April 2026, the Plaintiff has served:

25. four reports of Professor Michael O’Connor (obstetrician and gynaecologist);

26. two reports of Dr Robert Buist (obstetrician and gynaecologist);

27. a report of Dr Alan Meagher (colorectal surgeon);

28. a report of Ms Lindy Williams (occupational therapist);

29. a report of Dr Axel Estensen (psychiatrist);

30. a report of Dr Stephen Gibson (pain specialist); and

31. a report of Professor Bruce Brew (neurologist).

32. In response, the Defendant has served:

33. two reports of Dr Robert Ford (obstetrician and gynaecologist);

34. a report of Dr Angelo Virgona (psychiatrist);

35. a report of Ms Kate Morris (occupational therapist); and

36. a report of Professor John Cartmill (colorectal surgeon).

37. The Defendant has not served any lay witness evidence, nor has it served any competing quantum evidence from an obstetrician and gynaecologist, a neurologist or a pain specialist. Moreover, it appears that the Defendant has not, at present, identified which allegations in the proposed Amended Statement of Claim it consents to and which it does not, notwithstanding requests made by the Plaintiff on 22 May 2026 and 26 May 2026.

38. The proposed Amended Statement of Claim is based upon and reflects the further expert evidence of Dr Buist upon which the Plaintiff seeks to rely. Although no submission was made to this effect, it appears logical to consider, first, whether the Court, in the exercise of its discretion, is prepared to allow the Plaintiff to rely upon this additional expert evidence.

39. The resolution of that question will largely determine the second issue which is whether leave should be granted to file the Amended Statement of Claim.

Leave to rely upon further expert evidence on liability

21. Each of the Plaintiff and Defendant has prepared detailed written submissions which were supplemented orally by Mr Diehm KC who appeared with Ms Bartolo of Counsel for the Plaintiff, and Ms Harris-Roxas of Counsel for the Defendant.

Plaintiff’s submissions

22. The Plaintiff retained Dr Buist to provide reports after having already served four reports of Professor O’Connor between 17 April 2024 and 14 November 2025. No detailed reason is given for this. Anterior questions arise as to whether an explanation is required and, if so, what inferences the Court may draw in the absence of an express and comprehensive explanation. The chief complaint of the Defendant involves two strands: first, that in the circumstances a comprehensive explanation as to delay is necessary and, secondly, that none has been given.

23. The Plaintiff read a single affidavit of Emily Billiau sworn on 21 July 2026 in support of her motion. Ms Billiau is a solicitor who has carriage of these proceedings. Ms Billiau provides a detailed recitation of the chronology of this litigation. The closest her evidence approaches to providing an explanation for the timing of the new evidence of Dr Buist is in par 48 of her affidavit, which states:

“Following the unsuccessful mediation in August 2025, the plaintiff retained senior counsel. The reports of Dr Buist were obtained and an amended statement of claim was settled.”

24. Ms Harris-Roxas argued that this was hardly an explanation for what had occurred. There is force in this submission. During my oral exchanges with Ms Harris-Roxas I raised the forensic difficulty a party (in the position of the Plaintiff) faces in giving a comprehensive explanation without revealing privileged legal advice or making concessions about the quality of its existing expert evidence. Both of these matters would, realistically, arise for any party in a similar position. During his submissions in reply, Mr Diehm KC submitted that it was open to the Court to make inferences as to the circumstances in which the further reports were obtained.

25. The reports of Dr Buist were obtained after the unsuccessful mediation that took place in August 2025. After that point King’s Counsel was retained (for the first time) and, thereafter, the report(s) of Dr Buist were prepared, and a draft Amended Statement of Claim was settled. I infer that the sequence and combination of these factors, taken together with the communications presumably exchanged between the parties during the mediation, gave rise to a reconsideration by the Plaintiff of her legal strategy, including the retention of King’s Counsel with expertise in this kind of litigation. I accept Ms Harris-Roxas’ argument that the difficulties concerning forensic choices and legal professional privilege were matters that, if applicable here, could have been raised by the Plaintiff’s solicitor but were not.

26. I accept that even a slightly more comprehensive explanation could, and should, have been given by the Plaintiff in light of the lengthy history of the matter and the fact that the Plaintiff had already served four reports of Professor O’Connor. However, I infer that the failure of the mediation and the subsequent engagement of King’s Counsel gave rise to a redirection in the Plaintiff’s case that also involved securing a further expert report. Even though that is a matter of inference, I consider that it provides some insight into the timing of the additional reports of Dr Buist. It could hardly be suggested that the impetus for a change of direction in the Plaintiff’s case is a matter of mere conjecture. I take this into consideration in the exercise of the Court’s discretion.

Defendant’s submissions

27. Aside from maintaining the absence of an adequate (or any) explanation for the delay, the Defendant also opposes the fresh expert evidence on the following additional bases:

28. the existing reports of Professor O’Connor are sufficiently clear such that the additional reports of Dr Buist are superfluous;

29. the Plaintiff should not be entitled to engage in “expert shopping”;

30. the Plaintiff is promoting inefficiency in the conduct of this litigation contrary to s 56 of the C**ivil Procedure Act 2005 (NSW) (CPA); and

31. the introduction of fresh evidence will create prejudice.

32. Some of these arguments have greater merit than others.

33. In relation to the adequacy and clarity of Professor O’Connor’s evidence, at an interlocutory stage the Court is in no position to express an opinion one way or the other, particularly on a matter where reasonable minds may disagree. Mr Diehm KC maintains that his client’s interests, at least on liability, are better served by Dr Buist’s evidence than by the earlier reports of Professor O’Connor. I am prepared to accept that assessment at face value without embarking on a comparison of the competing reports.

34. Whilst it may well be true that Professor O’Connor’s reports were sufficiently clear for Dr Ford to respond to them, this by itself says little about the clarity of Dr Buist’s reports by comparison. This is putting aside the fact that Dr Buist adopts a slightly different analysis to Professor O’Connor, but one which is significant enough to warrant an amendment to the pleadings.

35. The Plaintiff submits that Dr Buist’s opinion is more direct than Professor O’Connor’s. If she is permitted to rely on it, she will run a narrower case, no longer contending that she ought to have been allowed a longer second stage of labour, or that the number of forceps pulls was itself negligent. Dr Buist adds one allegation, that there was a failure to inspect the extent of the tear and so to repair it properly. Professor O’Connor identified that matter but did not develop it as a want of reasonable care.

36. As to expert shopping, I agree that the authorities to which the Defendant drew my attention unsurprisingly discourage such a practice, particularly where a party has had free choice of expert and put forward a report (or, in this case, four): Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd [2026] FCAFC 16 at [28] (Wheelahan, O’Sullivan and McElwaine JJ), quoting Guntrip v Cheney Coaches Ltd [2012] EWCA Civ 392 at [17] (Lewison LJ, Elias and Ward LJJ agreeing). This submission has limited weight in circumstances where the Plaintiff’s reliance upon Dr Buist enables her to recast her case. There is, moreover, no basis to suppose that Professor O’Connor would amend his opinion such as to obviate the need for Dr Buist to express slightly divergent views. The Plaintiff rejects any suggestion that she is cherry-picking, as the Plaintiff has plainly indicated, in correspondence, that she will not be seeking to rely on both Professor O’Connor and Dr Buist on liability but will rely, if allowed, purely on the evidence of Dr Buist on the question of liability.

37. In relation to efficiency, it is difficult to gauge, at this interlocutory stage, how the introduction of new evidence will ultimately affect the efficiency of the litigation and the length of the hearing. However, because the proposed Amended Statement of Claim, in my view, better and more succinctly encapsulates the Plaintiff’s causes of action, that is itself a reason to accept the Plaintiff’s submission that the admission of Dr Buist’s evidence, together with the Amended Statement of Claim, will streamline the issues and promote, rather than defeat, the aims of s 56.

38. I do not consider that there is force in the Defendant’s prejudice argument. To be fair, however, that submission was put rather faintly by Counsel for the Defendant in acknowledgement that it is often capable of cure with an appropriate order for costs. Although the Defendant contends that, even aside from costs, prejudice exists in the time, effort and cost expended to date in responding to Professor O’Connor’s four reports and the future need to respond to Dr Buist’s evidence, if allowed, I see no reason why, ultimately, that time, which is reflected (largely) in costs, cannot be addressed so as to ameliorate the consequences of the change of direction now sought to be made by the Plaintiff.

Conclusion

35. I am prepared to grant leave to the Plaintiff to rely upon the new reports of Dr Buist which the Defendant has now had for a considerable period of time. These proceedings represent the only opportunity for the Plaintiff to seek relief in a court for the injuries she alleges she has suffered in consequence of conduct of the Defendant that may ultimately be found to be negligent. Whilst the approach taken to date, with the service of four reports of Professor O’Connor (and responding reports from Dr Ford), is suboptimal, the Plaintiff, at this stage of the litigation process, ought to be entitled to prosecute her claim in the most advantageous way. If that involves the substitution of Dr Buist’s reports in preference to the earlier reports of Professor O’Connor, she should be entitled to do that, particularly in circumstances where there will be no overlap, on liability, between Dr Buist and Professor O’Connor other than in relation to the areas in which they concur (noting that the Plaintiff does not intend to read Professor O’Connor’s reports on liability but only as to quantum).

36. In exercising my discretion I have also taken into consideration the following matters:

37. as at the present time no hearing date for this matter has been allocated. The additional evidence of Dr Buist will not delay the hearing or determination of this matter. What appears to have been a greater contributor to delay has been the Defendant’s opposition to such evidence, and leave being granted to file the amended pleading, although this observation is made without criticism. The Defendant was entitled to adopt this position but, equally, when considering any questions of delay in the exercise of the Court’s discretion, the delay caused by this Notice of Motion cannot be excluded from consideration;

38. aligned with the preceding matter is the fact that no expert conclave has yet occurred between Professor O’Connor and Dr Ford. As such, an expert conclave, which had to occur in any event, will still need to take place, and little prejudice is caused if Dr Buist’s reports are received in advance of that occurring and he, not Professor O’Connor, attends the conclave; and

39. I am satisfied, as has been conceded by Ms Harris-Roxas, that the extent of the pleading amendment, which is reflective of Dr Buist’s reports, is only slight such that, if anything, the ultimate hearing could be marginally shorter.

40. For these reasons, leave will be granted to the Plaintiff to rely upon the reports of Dr Buist.

Leave to amend the pleading

38. Section 64 of the CPA provides, in part, the following:

(1) At any stage of proceedings, the court may order—

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

39. As disclosed in subs (2), the discretion in s 64 of the CPA is subject to s 58 of the same Act. Section 58 of the CPA provides:

(1) In deciding—

(a) whether to make any order or direction for the management of proceedings, including—

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court—

(a) must have regard to the provisions of sections 56 and 57…

40. In short, the application before me is one in which the overriding purpose in s 56, being the just, quick and cheap resolution of the real issues in the proceedings, must bear upon the exercise of my discretion under s 64.

41. The Plaintiff relies upon the principles addressed by the High Court in Aon R**isk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon Risk) at [96], namely, there is no right to amend and further amendments depend on the exercise of the Court’s discretionary powers. Aon Risk must be read in the context of s 64 of the CPA as well as s 58. The Plaintiff submits that four propositions inform the exercise of the Court’s discretion: whether the amendment is made for a proper purpose; whether the amendment is proper in substance and form and not liable to be struck out; whether any undue prejudice arises in relation to the other party; and whether the amendment is consistent with the dictates of justice.

42. The proposed Amended Statement of Claim seeks to align the pleading with the evidence of Dr Buist. Having granted the Plaintiff leave to rely upon that evidence, I consider that leave should also be granted to file the Amended Statement of Claim.

43. During the hearing Mr Diehm KC carefully took the Court through the proposed draft pleading to identify the similarities and differences between the existing Statement of Claim and the proposed amendment. The purpose of this analysis was to demonstrate that a number of the particulars of negligence presently pleaded are retained in the proposed draft pleading with certain nuanced changes, and one additional particular (of negligence). As I have already acknowledged, Ms Harris-Roxas correctly conceded that the pleading amendment was slight and did not, accordingly, venture the suggestion in her submissions that the pleading changes the nature of the case in any significant way.

44. For this reason, I grant leave for the Amended Statement of Claim to be filed.

Costs

45. The usual default order that follows from a pleading amendment is that the party responsible for the amendment pays the costs thrown away by such amendment. Despite the Plaintiff seeking that costs be reserved, that is the order that I will make here.

46. Lest there be any confusion, I make plain that this costs order is not intended to encapsulate whatever costs the Defendant has incurred or will incur in consequence of having to address those parts of the reports of Professor O’Connor that will not be relied upon by the Plaintiff. This is not because I have any view on this issue unfavourable to the Defendant. In my view, it is premature to identify the nature and extent of those costs in advance of the hearing (and the resulting judgment) in circumstances where parts of Professor O’Connor’s reports will still be relied upon by the Plaintiff on the question of quantum. The costs incurred by the Defendant in light of the Plaintiff abandoning her reliance on those parts of the reports dealing with liability will be better assessed with the benefit of hindsight when the matter concludes.

47. I hasten to add that I see no reason why, in due course, the Defendant would not be entitled to at least a proportion, if not a significant proportion, of the costs of retaining Dr Ford, his consideration of Professor O’Connor’s four reports and responding to them, as well as other ancillary costs. But I cannot form anything other than a preliminary view at this juncture. That will be a matter for the determination of the trial judge who hears the matter.

Orders

48. I make the following orders:

49. The time for service of the Plaintiff’s expert evidence on liability is extended to 16 April 2026, pursuant to r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

50. The Plaintiff has leave to rely upon the reports of Dr Robert Buist dated 18 March 2026 and 2 April 2026.

51. The Plaintiff has leave to file the Amended Statement of Claim in the form attached to the Notice of Motion filed 11 June 2026 and marked “Attachment A”, pursuant to s 64 of the Civil Procedure Act 2005 (NSW).

52. The Court directs, pursuant to UCPR r 31.24, that the parties’ liability experts, Dr Robert Ford and Dr Robert Buist, are to confer within two months after the Defendant has furnished any expert liability evidence in reply to Dr Buist.

53. The Plaintiff is to pay the Defendant’s costs thrown away by reason of the amendment.

**********