KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's Hospital Westmead and Anor - [2010] NSWSC 891 - NSWSC 2010 case summary — Zoe

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KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's Hospital Westmead and Anor

[2010] NSWSC 891

Supreme Court of NSW|2010-07-27|Before: Johnson J, Mr P, Mr J

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Source facts

Court

Supreme Court of NSW

Decision date

2010-07-27

Before

Johnson J, Mr P, Mr J

Source

Original judgment source is linked above.

Judgment (35 paragraphs)

[1]

Background to Application 3 The Plaintiff was born on 5 December 1995 and is now 14 years' old. On 9 May 1996, she was taken to the Children's Hospital at Westmead having had a seizure that morning. She was first seen by the Second Defendant, a paediatrician, in the hospital on the morning of 10 May 1996. The Second Defendant was consulted from time to time in the period through to 21 June 1996. On that date, the Plaintiff was diagnosed with hypoglycaemia, said to have been caused by congenital hyperinsulinism or hyperinsulinaemia ("CHI"). 4 The Plaintiff by her tutor, RF (her father), commenced proceedings in this Court in 2002 for damages against the First and Second Defendants alleging, in essence, failures to take proper steps to diagnose the hypoglycaemia and CHI in the period between 9 May and 21 June 1996. It is alleged that the Plaintiff suffered serious brain damage as a result of the negligent failure of the Defendants to diagnose and treat her CHI during that six-week period. 5 The claimed damage from the alleged negligence was that, during the period of the claimed delayed diagnosis, it is said that the Plaintiff suffered many episodes of CHI, with consequent hypoglycaemia and associated metabolic disturbances, causing seizures and ultimately brain injury, leading to the claim that the Plaintiff has suffered brain damage. 6 Particulars furnished by the Plaintiff for the purpose of Rule 15.12 UCPR state that she suffered brain damage during the relevant six-week period, leading to neurological deficits, including cognitive impairment, right-sided hemiparesis, motor dyspraxia, receptive language dysfunction and expressive language dysfunction, along with memory dysfunction. 7 The Plaintiff's claim for damages is very substantial. The Plaintiff claims that she currently requires over 40 hours per week of personal and domestic care and that, from 18 years of age, she will require 24-hour personal care and domestic assistance. The Plaintiff's claim is that she is wholly and permanently unemployable and that she will require significant future treatment expenses. It may reasonably be concluded that the potential size of the Plaintiff's claim is to be measured in millions of dollars. 8 Although the proceedings were commenced in 2002, no final hearing date has yet been fixed. The Court was informed that the estimated duration of the final hearing will be between six to eight weeks. 9 The Court was informed that the parties have participated in lengthy mediations on 7 April 2009 and 10 March 2010 which have not led to resolution of the proceedings.

[10]

(2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination." 16 Rule 23.4 is found within Division 1 of Part 23 UCPR. Rule 23.1(1) states that the Division applies to proceedings in which "a person's physical or mental condition is relevant to a matter in question" where that person is a party. The term "medical examination" is defined in Rule 23.1(2) as including "any examination by a medical expert but does not include tests referred to in Division 2". 17 The power under Rule 23.4 was considered recently by the Court of Appeal in Rowlands v State of New South Wales [2009] NSWCA 136; 74 NSWLR 715. Hodgson JA (Allsop P agreeing) held at 726 [31] that Rule 23.4 extends to orders directed to, and appropriate for, the bringing about of medical examination, including the kind of medical examination routinely carried out by pathologists. Although dissenting with respect to the outcome of the appeal, Tobias JA at 730 [61] agreed with the reasoning of Hodgson JA for holding that Rule 23.4(1) should be construed as extending to routine tests or procedures (such as the taking of blood samples from a party) to be examined by a medical pathologist. Tobias JA observed at 730 [61] that the taking of x-rays, CAT scans and MRIs for examination by the appropriate medical expert would also be covered by the Rule. 18 Hodgson JA observed at 726 [35] that tests may fall within the Rule if the overriding purpose of the test is a medical examination, or bringing about a medical examination, when a person's physical or mental condition is relevant to a matter in question. He also observed at 728-729 [49] that the ordering of particular medical examinations must be for the purpose of obtaining evidence about a Plaintiff's medical condition, and cannot be justified by the purpose of obtaining evidence that might go to the Plaintiff's veracity generally. Tobias JA at 730 [61] agreed with the observations of Hodgson JA at 726 [35], stating that such tests must be relevant to the party's physical or mental condition where that is an issue in the proceedings, but that the Rule cannot be used for a collateral purpose such as testing a party's credibility. 19 A particular issue arose in Rowlands v State of New South Wales concerning the privilege against self-incrimination, because the tests which had been ordered there were drug-screening tests involving the collection of urine, blood and hair samples. No such issue arises in the present case, and thus discussion by the Court of Appeal concerning that issue does not apply here. 20 It is noteworthy that, although the Court of Appeal overturned the orders for medical examination because of a series of errors in the decision of the District Court, Hodgson JA at 729 [55]-[56] considered that the evidence before the District Court did justify adoption of a proposed timetable for a medical examination of the plaintiff including drug testing, with liberty to the defendants to apply for a stay of proceedings if the plaintiff did not comply with that timetable. To the extent that orders of that sought were not directly supported by Rule 23 UCPR, Hodgson JA observed that they were plainly within the power to stay proceedings given by s.67 Civil Procedure Act 2005. Hodgson JA observed at 729 [55] that to make such orders would further the purposes set out in ss.56, 57 and 61(1) Civil Procedure Act 2005. As will be seen, both the Plaintiff and the Second Defendant seek to invoke ss.56, 57, 58 and 61 of the Civil Procedure Act 2005 on this application. I will return to that issue later in the judgment. 21 The power granted to the Court in Rule 23.4 UCPR is discretionary. The discretion is to be exercised judicially and having regard to factors relevant to the exercise of discretion in the particular case. 22 Where civil proceedings for damages are commenced, an opposing party may seek to utilise the coercive powers of the Court, in proper circumstances, for the purpose of seeking to meet the case which is made by a plaintiff. In these circumstances, where the Plaintiff sues the Second Defendant for damages for personal injury, the processes of the Court have been engaged in a way that can operate adversely to the Second Defendant. Clearly, the Second Defendant is at risk of an adverse judgment and a substantial award of damages if the Plaintiff succeeds against him. 23 Both the Second Defendant and the Plaintiff seek to invoke, by analogy, principles concerning production of documents on discovery, subpoena or in response to a notice to produce (see [32], [39] below). I bear in mind that there is a difference between the statutory schemes for medical examination in Rule 23 UCPR and the statutory schemes for discovery (Rule 21.2 UCPR) and notices to produce (Rule 21.10 UCPR), where the term "relevant to a fact in issue" is defined in Rule 21.1(2) and Rule 21.10 respectively. Principles applicable to subpoenas (Rule 33 UCPR) raise similar, but not identical, considerations to those applicable on an application for medical examination. As counsel for both the Plaintiff and the Second Defendant invited the Court to apply analogous principles (emerging from case law) with respect to the exercise of discretion under Rule 23.4 UCPR, I will consider those submissions for the purpose of determining the present application.

[11]

Broad Submissions of the Parties 24 Both the Second Defendant and the Plaintiff referred to a substantial number of documents at the hearing of the application, including medical reports and affidavits relating to the history of the proceedings and steps taken by the parties for the purpose of the proceedings. It is not necessary to recite in detail this evidence, nor indeed the detailed arguments made by reference to it for the purpose of determining this interlocutory application. The detailed written submissions provided by the Second Defendant and the Plaintiff are on file and they incorporate the substance of the competing arguments. 25 In support of the application, Mr Kirk submitted that a proper basis had been demonstrated for the order. He pointed to a number of reports and documents, some of which had been served by other parties. He referred to a report dated 3 March 2005 of Dr Robert Jones, paediatric neurosurgeon, which included the statement that the Plaintiff's hypoglycaemia would be expected to affect her central nervous system generally, and Dr Jones found it "illogical to postulate that her expressive speech disorder [was] due to the hypoglycaemia that she suffered as an infant". Dr Jones expressed the opinion that the Plaintiff's speech disability, in an otherwise intelligent girl, was due to another cause such as an abnormality of her speech centres. 26 Mr Kirk referred as well to an MRI of the Plaintiff's head undertaken on 31 January 2006 which found no evidence of any abnormality and which summarised the conclusion as "normal examination". 27 In addition, Mr Kirk referred to the report dated 24 August 2009 of Dr Lisa Brown, consultant psychiatrist. With respect to the question of whether the Plaintiff suffers from brain damage, Dr Brown observed that MRI cerebral scan results in 1996 and 2006 did not confirm the presence of any obvious abnormality, and that an ultimate decision as to the extent of any organic brain damage would need to be made by a paediatric neurologist or neuropsychologist. Dr Brown observed as well that an opinion regarding the alleged development of gross and fine motor impairment, ataxia, "patchy" neuropsychological deficits and severe expressive language difficulty would require comment by appropriate paediatric specialists in those arenas. 28 Mr Kirk referred as well to a report dated 21 December 2009 of Dr Sunny Lah, clinical neuropsychologist, in which the comment was made that analyses of the Plaintiff's current intellectual functioning results indicated that the discrepancy between her verbal (low average) and non-verbal (average) intellectual skills was statistically significant, and that the difference between those results was not due to chance or measurement error. 29 Mr Kirk submitted that the reports of Dr Maclean, paediatric clinical geneticist, dated 17 May 2010 and 15 June 2010 provided additional information and insight into the purpose of the genetic testing proposed to be undertaken. In his first report, Dr Maclean noted that the Plaintiff has CHI associated with seizures in infancy. He observed that she has "a severe expressive language disorder with a borderline range verbal IQ, an average non-verbal IQ, a history of focal neurological signs including ataxia and hemiparesis and normal neuro imaging". Dr Maclean said that, in assessing the pattern of clinical findings in the Plaintiff, "there are grounds for determining the genetic basis of the CHI, assessing whether the CHI is part of an associated disorder eg a congenital disorder of glycosylation (CDG) and considering if there may be unrelated primary language disorder". 30 In his second report (of 15 June 2010), Dr Maclean was asked to respond to a number of queries posed by the solicitor for the Plaintiff to the solicitor for the Second Defendant. Dr Maclean did so, providing additional information underlying his thinking on the issue. 31 Mr Kirk submitted that the context in which testing is sought is that there are two significant causation issues which have arisen in the course of the proceedings:

[13]

(b) whether the Plaintiff's developmental delay, and in particular her verbal expressive disorder, is the result of another genetic or congenital cause, rather than the claimed delay in diagnosing hyperglycaemia and CHI. 32 Using analogous concepts from discovery and subpoena law, Mr Kirk submitted that this was not a fishing expedition and that there was more than a "tittle of evidence" to support the order for medical examination, with the process being based upon something more than "a bare allegation" which was "essentially speculative in nature": WA Pines Pty Limited v Bannerman (1980) 41 FLR 175 at 181-182, 190-191. He submitted that testing had the capacity to "throw light on the issues" in the proceedings: Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90 at 103. He submitted that it may be reasonably regarded as "on the cards" that the testing would materially assist the resolution of the issues in the proceedings: Alister v The Queen [1984] HCA 85; 154 CLR 404 at 414. 33 Mr Kirk submitted that the Plaintiff had not pointed to any prejudice, apart from the prospect that further steps may need to be taken by the Plaintiff in the event that the testing raises a causation issue adverse to the Plaintiff. It was submitted that this did not constitute a reason for declining to make the order. 34 Insofar as the Plaintiff contended that there were far-reaching consequences for the Plaintiff (and generally for personal injury litigation) if a broad test was required for genomic disorders, Mr Kirk submitted that the confined purpose of the proposed testing in this case was important. 35 Mr Kirk submitted that, if an examination has the potential to produce relevant evidence and if the evidence would go to an issue of potential significance in the context of the proceedings, and if the nature of the examination was not unjustifiably intrusive, then having regard to the overall nature and size of the Plaintiff's claim, an order under Rule 23.4 UCPR should be made. 36 Mr Kirk submitted that the making of the order will facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings: s.56 Civil Procedure Act 2005. He submitted that the application was fortified by ss.57(1) and 58 Civil Procedure Act 2005, with emphasis being placed upon the Court following the dictates of justice. 37 Mr Connor SC, for the Plaintiff, submitted that the Second Defendant carries the onus on the application and had not established a proper foundation for the making of the order. He submitted that the many experts who had examined the Plaintiff for the purpose of the proceedings and had reported concerning her claim, including experts relied upon by the Defendants, had not suggested genetic testing be undertaken in the past. He emphasised that, until the suggestion was made by the solicitor for the Second Defendant in April 2010, the prospect of genetic testing of the Plaintiff had not been raised as a possible issue in the proceedings. Mr Connor SC pointed to the fact that the First Defendant had arranged for the Plaintiff to be examined in 2003 by Professor Gillian Turner, a paediatrician and geneticist, and that no report of Professor Turner had been served. Mr Connor SC noted that it had not been suggested at that time that blood sampling to allow genetic testing of the Plaintiff ought be undertaken. 38 Mr Connor SC submitted that, after the proceedings had been on foot for some eight years without this course being proposed, the Second Defendant now seeks an order for medical examination for this purpose. In effect, Mr Connor SC submitted that the time for the Second Defendant to have considered such a step has long passed and that the present application, brought at this time, was not consistent with the obligations upon a litigant under s.56 Civil Procedure Act 2005. He submitted that the Court should have regard to this, and the provisions of ss.56-61 of that Act, in determining this interlocutory application. He relied upon comments of Allsop P (McColl JA agreeing) in Richards v Cornford (No. 3) [2010] NSWCA 134 at [98]ff, concerning the application of case management principles and the avoidance of delay. 39 It was submitted for the Plaintiff that this was, in truth, a fishing expedition made belatedly in the proceedings by the Second Defendant. In answer to Mr Kirk's submissions concerning the evidentiary foundation for the application, Mr Connor SC undertook a close examination of the relevant reports, in particular those of Dr Jones and Dr Maclean. 40 Mr Connor SC pointed to significant differences between the report of Dr Jones dated 3 March 2005 and a later report of Dr Jones dated 14 April 2005 which omitted significant parts of Dr Jones' earlier report. Mr Connor SC took the Court to features of the reports of Dr Maclean which he submitted raised issues concerning the appropriateness of genetic testing in this case. 41 Mr Connor SC submitted that the Second Defendant was seeking to have the Plaintiff submit to broad testing of her entire genome for a genomic disorder, and that this kind of test gives rise to issues of particular concern that go beyond this case to many, if not every, personal injury case. 42 He submitted that this was a broad and highly intrusive form of testing and that no basis for such a test had been demonstrated in this case. 43 The Plaintiff submitted that the Court should decline to make the order sought for medical examination.

[14]

Resolution of Competing Submissions 44 There is no dispute that the Plaintiff's physical or mental condition is relevant to a matter in question in the proceedings (Rule 23.1(1) UCPR) and that the type of medical examination (including the blood sampling sought) falls within Rule 23.4 as considered by the Court of Appeal in Rowlands v State of New South Wales. The critical issue on the application is whether the Second Defendant has demonstrated a proper basis for an order to be made, and made at this stage of the proceedings. 45 The Plaintiff has commenced proceedings in this Court for damages against the First and Second Defendants. The Plaintiff contends that the negligence of the Second Defendant has caused her very significant injury for which, if liability is established, a very substantial award of damages will result. 46 A party who is sued with these possible consequences is entitled to take reasonable steps in a proper case, including the use of court processes, to ensure that issues which may bear upon the determination of the proceedings are assessed, so that the trial Judge is in a position to determine the real issues in dispute in the proceedings. 47 It is important to keep in mind that this is an interlocutory application for a discretionary order for the purpose of personal injury proceedings. A number of the arguments advanced by the Plaintiff in opposition to the application are more suited to the trial. On an application such as this, the Court is not undertaking a type of trial in advance where the evidence is considered closely to determine what conclusions may be reached. The submissions of Mr Connor SC point to legitimate areas of cross-examination and challenge to the evidence of Dr Jones (in particular) at trial. However, I am determining an interlocutory application for medical examination. I am not presiding at the trial of the Plaintiff's claim. An interlocutory application such as this is not the occasion to attempt to reach firm conclusions on the medical issues between the parties: GB v Western Sydney Area Health Service [2010] NSWSC 181 at [89]-[90]. 48 It appears to be the case, from the evidence presented on this application, that no expert who has considered the Plaintiff's case before this year has proposed that a blood test of the Plaintiff be taken to allow genetic testing. Nor, however, as Mr Kirk has observed, has any report which has been served asserted that there is no genetic cause for any part of the Plaintiff's condition. The reports referred to by Mr Kirk (see [25] to [30] above) appear to raise a question as to whether another explanation may exist for the Plaintiff's developmental delay and, in particular, her verbal expressive disorder. 49 By reference to submissions of counsel, I am satisfied that the present application is not a fishing expedition and that there is more than a "tittle of evidence" to support it. The application is based upon more than a "a bare allegation" and is not "essentially speculative in nature". The proposed testing has the capacity to "throw light on the issues" in the proceedings. As Brereton J explained in his helpful analysis in Portal Software International Pty Limited v Bodsworth [2005] NSWSC 1115, in particular at [24], the distinction between adjectival relevance and substantive relevance is pertinent. The present interlocutory application for medical examination is adjectival in nature, and the concept of adjectival relevance explained by Beaumont J in Trade Practices Commission v Arnotts Limited at 103 has particular utility - the medical examination (including blood sampling) called for here "could possibly throw light on the issues" in the proceedings. 50 Counsel indicated at the hearing that the issue of causation fell to be determined by reference to s.5E Civil Liability Act 2002, and not the common law (T20.12-19, 27 July 2010). 51 I have had regard to the arguments of the parties by reference to ss.56-61 Civil Procedure Act 2005. A trial date for these proceedings has yet to be fixed. The proceedings have been on foot for some eight years and there have been two mediations undertaken in the last 18 months. 52 The Civil Procedure Act 2005 requires litigants to move with appropriate despatch in identifying the real issues in proceedings to facilitate the determination by the Court of the case. However, I do not consider that these provisions operate in this case so that the Second Defendant should be shut out from seeking genetic testing because it has not been suggested previously, and the proceedings have been on foot for some years. The position may have been different if a trial date had been fixed and the application was being made in the shadow of the trial. In those circumstances, the arguments advanced for the Plaintiff may lead a Court to decline a very late application for medical examination, acting upon the provisions in ss.56-61 Civil Procedure Act 2005 and the principles in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175. 53 However, this case has not yet been allocated a hearing date. The Plaintiff's solicitor has indicated, in an affidavit sworn 20 July 2010, that the final hearing of the matter would probably occupy some six to eight weeks of hearing time. If a hearing date of that length was sought now, it may be expected that a likely hearing would not be scheduled until some considerable way into 2011. 54 I do not consider that the lateness of this application ought be utilised, in this case, to prevent the Second Defendant from taking a legitimate litigious step. The objects of case management include, amongst other things, the just determination of the proceedings: s.57(1)(a) Civil Procedure Act 2005. As Allsop P observed in Richards v Cornford (No. 3) at [107], the considerations in s.57(1)(a)-(d) are inextricably related. Together with s.56(2), s.57(2) requires the Court to apply rules of Court as best to ensure the attainment of the objects in s.57(1). Those objects include the just determination of the proceedings and this means justice for both parties. 55 Section 58(2) is also important. Section 58 provides: "58 Court to follow dictates of justice

[25]

(vii) such other matters as the court considers relevant in the circumstances of the case." 56 In this case, Mr Kirk emphasised the degree of difficulty or complexity to which the issues in the proceedings give rise (s.58(2)(b)(i)) and the degree of injustice that would be suffered by the Second Defendant as a consequence of the refusal of the order sought (s.58(2)(b)(vi)). The Second Defendant submits that the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities (s.58(2)(b)(ii)), cuts both ways on this application. Mr Connor SC emphasised the use that the Second Defendant could have made of an opportunity available to him in the course of the proceedings to make this application at an earlier time (s.58(2)(b)(v)). 57 I am persuaded that s.58(2)(b) factors relevant to this application provide support to the Second Defendant and operate in favour of the making of the order which is sought. 58 It may be, of course, that the results of testing will be unfavourable to the Second Defendant, thereby excluding a genomic disorder as an explanation for the Plaintiff's developmental delay, and in particular, her verbal expressive disorder. If that be the case, that will be the end of the matter. The Second Defendant would have had an opportunity to explore this aspect upon a legitimate basis, for the purpose of the proceedings. It may then be concluded that there is no issue in dispute in this respect, and the Plaintiff's claim may proceed to hearing on that basis. 59 If the testing is adverse to the Plaintiff in some respect on this issue, then it may be that further examination and evidence will be required so that the parties may place before the trial Judge all relevant evidence, so as to permit the just resolution of this issue at trial. To the extent that the Plaintiff seeks to rely upon the further cost and delay which may flow from this possible scenario, the argument does not assist the Plaintiff on this application. Those things will only result if the genetic testing provides results which give rise to a real issue in the proceedings. 60 I have considered the degree of intrusion and distress which the testing may bring about. The evidence indicates that the Plaintiff has blood tests, from time to time, at the venue which is proposed for the purpose of the taking of this blood sample. I do not consider that the level of intrusion involved in the taking of a blood sample operates against the Second Defendant on this application. 61 I have taken into account as well the submissions of Mr Connor SC concerning the testing of the genome for genomic disorders. The fact that such testing may be undertaken at all is, of course, the product of contemporary scientific and medical progress. The Court is alive to the controversy concerning genetic testing and its possible uses. See, for example, the observations of Ipp JA in Harriton v Stephens [2004] NSWCA 93; 59 NSWLR 694 at 746-747 [338]-[347]. 62 It is appropriate to confine the examination to be undertaken to an examination which is relevant to the issues in these proceedings. The purposes of testing identified in the proposed order (see [13] above) provide clarity in this respect. 63 It is true that the third purpose, namely "whether the plaintiff suffers from genomic disorders which may explain her developmental and language disorder", is expressed in a broad way. However, the focus of the testing concerns the Plaintiff's developmental and language disorder, which forms a significant part of the Plaintiff's claim and has been raised in the reports referred to earlier (at [25]-[30]). I am satisfied that testing for this specified purpose is an appropriate use of the Rule 23.4 UCPR power to order a medical examination in the context of this litigation. The determination of this interlocutory application, in the circumstances of this case, ought not be taken to have broader consequences, on some hypothetical basis, in other proceedings. 64 If any issue is raised by the testing which causes concern about confidentiality of information, then it would be open to the parties to seek an order restricting publication. Of course, the content of any report served in the proceedings will be subject to the implied undertaking not to use information obtained by compulsory court process for a purpose other than use in the proceedings: Hearne v Street [2008] HCA 36; 235 CLR 125 at [96], [105]-[108]. 65 The only order sought by the Second Defendant at this time under Rule 23.4 UCPR is that a blood test be taken from the Plaintiff for the purpose of certain tests being undertaken. I am satisfied that an order to this effect should be made. 66 I am satisfied that the Second Defendant has demonstrated a basis for an order for medical examination, including the taking of a blood sample for the purpose of genetic testing of the Plaintiff.

[27]

Costs 75 Firstly, I shall deal with the question of costs. The Second Defendant submits that this was a discrete interlocutory application, brought by Notice of Motion, resisted by the Plaintiff, and determined favourably to the Second Defendant. It is submitted that as would occur with a contested application for discovery, or to set aside a notice to produce, the unsuccessful party ought to bear the costs of the successful party. 76 It is submitted for the Plaintiff that costs ought be costs in the cause. Emphasis was placed upon the developing evidentiary foundation in support of the application, and the fine tuning of the order which was ultimately sought by the Second Defendant and which the Court will shortly make. It was submitted in those circumstances, and having regard to the relative novelty of the application, that costs ought to be costs in the cause. 77 I note that the First Defendant appeared at the hearing of the Notice of Motion but, as I have stated in my judgment, played no part in its determination. 78 The only question to be determined as to costs is whether an order for costs ought be made in favour of the Second Defendant against the Plaintiff, or whether the costs ought to be costs in the cause. If the latter course was to be taken, some specification would be needed to protect the position of the First Defendant. However, I have determined that I should proceed to determine the question of costs today, so that the latter option does not arise. 79 The Second Defendant brought this application to Court after requests were made to the solicitor for the Plaintiff that the Plaintiff be available for examination, followed by a formal request under the UCPR for that to occur. A Notice of Motion was filed, the matter was listed for hearing and, following a direction given by me, written submissions were provided on behalf of the Second Defendant and the Plaintiff. 80 A substantial body of documentation was read or tendered at the hearing. The Plaintiff, as was her entitlement, resisted the making of the order and resisted it strongly. However, I have determined, and determined clearly, that the Second Defendant is entitled in the circumstances of this case to the order which is sought. 81 I do not think that an order that costs be costs in the cause is an appropriate costs response to this application. It is a stand alone application in complex litigation which, it would seem, is still some way off finalisation. I have had regard to the developing evidentiary basis referred to by Mr Connor SC, for the Plaintiff. That said, the evidentiary basis was sufficiently clear I think at the time the written submissions were drafted, and certainly entirely clear at the time of the hearing when the matter was argued to finality. 82 It is true that, on the hearing day, there was some fine tuning of the precise order which is sought but I think, in reality, that the order which I propose to make reflects the type of order sought in the Second Defendant's written submissions. 83 It seems to me, in the circumstances, that the ordinary rule ought apply to this interlocutory application which has been heard and determined separately by me in the litigation. I am satisfied that costs should follow the event, and I propose to make an order that the Plaintiff pay the Second Defendant's costs of the Notice of Motion. There will be no order as to the costs of the First Defendant.

[28]

First Access to the Plaintiff? 84 I move to the second question, namely, whether there ought to be a type of first access condition built into the orders, so that the Plaintiff receives the results of the test and any report before the Second Defendant. 85 It is submitted in support of this application by Mr Connor SC, that the testing is sensitive in nature and potentially may throw up a range of information which may or may not have some bearing upon this litigation. In circumstances where that may be the consequence of the testing, so the submission runs, the Plaintiff should have an opportunity to see the results first and to apply to the Court if there is any restriction to be placed on what is to be disclosed to the Second Defendant. 86 This type of first access term is resisted by the Second Defendant. It is submitted by Mr Kirk, for the Second Defendant, that medical testing for the purposes of litigation can involve the disclosure of a wide range of sensitive and personal information, whether it be blood testing, psychiatric testing, or a range of other medical testing which may have to be undertaken for the purposes of the litigation. It is submitted that genetic testing may involve similar considerations, but does not, in the circumstances of this case, require the type of restriction which is sought by the Plaintiff. Mr Kirk submits that if the Court took that approach, what has already been undertaken at a significant hearing by this Court, and which has led to judgment being given, may be repeated in a second round of argument where the submissions are rehearsed in a slightly different setting. 87 The starting point with respect to this matter, in my view, is a consideration of the matters referred to at [64] of my judgment. There I observed that, if any issue is raised by the testing which causes concern about confidentiality of information, then it would be open to the parties to seek an order restricting publication. Of course, the content of any report served in the proceedings would be subject to the implied undertaking not to use information obtained by compulsory court process for a purpose other than use in the proceedings. 88 The latter proposition, of course, applies to a wide range of sensitive, confidential and personal information that comes into the hands of parties in the course of litigation in courts every day of the week. 89 Parties who come to Court seeking relief, as I have said in the judgment, become subject to compulsory processes and the disclosure of information for the purpose of proceedings. The law's response to that, in the first instance, is the use of the implied undertaking. Of course, the consequences of a breach of that implied undertaking may involve contempt of court, a measure of the seriousness which the law applies to the protection of material of that sort in the hands of parties before its use in proceedings. 90 I am not satisfied that any type of first access term ought to be imposed in the order which I propose to make. The Second Defendant has obtained the order from the Court. The testing will be undertaken by way of arrangements paid for and made by the Second Defendant and, in due course, the report forthcoming from this process will come into the hands of the Second Defendant's solicitor. 91 I will include in the orders which I make a direction that the Second Defendant's solicitor is to serve the report upon the solicitor for the Plaintiff within 48 hours of receipt. However, I do not think that the circumstances of this case call for the type of additional restriction which the Plaintiff has sought. I decline to make an order giving first access to the test results and report to the Plaintiff.