Report of Dr Paul Thornton
14The Plaintiff seeks leave to serve and rely upon the report of Dr Paul Thornton dated 1 May 2011 for the purposes of the issue of causation only. Mr Connor SC accepts that the report of Dr Thornton, if allowed, could not be relied upon with respect to breach of duty. He does not seek that Dr Thornton be permitted to attend the reconvened breach of duty experts' conference when it takes place.
15The Court heard detailed oral submissions on the application to rely upon the report of Dr Thornton. It was submitted for the Plaintiff that the timetable fixed (and amended) by the Court required the Plaintiff to serve any further expert evidence on causation by 8 April 2011. In light of that direction, the evidence reveals that on about 11 March 2011, an email was sent to Dr Thornton, a paediatric endocrinologist located in Texas with expertise in hyperinsulinism. It appears that Dr Thornton did not receive that email and that it was not until April 2011 that communications were established with Dr Thornton which culminated in the provision of his report of 1 May 2011.
16It was submitted for the Plaintiff that the report could have been served without leave by 8 April 2011, and in circumstances where the delay in the provision of the report had been explained, the Court should grant the Plaintiff leave to rely upon Dr Thornton's report of 1 May 2011. That report was served upon the Defendants on 2 May 2011.
17It was submitted as well for the Plaintiff, that the Defendants had served reports of paediatric neurologists in December 2010, after the matter had been fixed for hearing and without the leave of the Court. Thus, the Defendants had not themselves complied strictly with orders of the Court with respect to service of experts' reports. Although Mr Connor SC did not submit that the report of Dr Thornton was in any way responding to the reports of the paediatric neurologists, Dr Ryan and Dr Inder, it was submitted that the Defendants themselves had acted in a way about which they were now complaining in the context of the Plaintiff's application.
18It was submitted for the Defendants that the evidence suggested that the Plaintiff had sought a report from a paediatric endocrinologist as long ago as August 2006, but had not served such a report. The Court was taken to the report of Associate Professor Fergus Cameron of 6 October 2008, a report served by the First Defendant in the proceedings. Professor Cameron is a paediatric endocrinologist. It was submitted that the Plaintiff, in effect, is seeking to respond to the 2008 report of Associate Professor Cameron by introducing very late in the day the report of Dr Thornton. It was submitted for the Defendants that, in reality, the Plaintiff's application with respect to Dr Thornton's report resulted from what the Plaintiff perceived was an unhelpful joint breach of duty experts' report.
19Counsel for the Defendants submitted that the application for leave ought be refused having regard to the unexplained delay by the Plaintiff in determining, in March-April 2011, that a paediatric endocrinologist ought be retained to respond to the issue raised in the report of Associate Professor Cameron of October 2008. Further, Mr Kirk submitted that the Second Defendant would be prejudiced if the Plaintiff was allowed to rely upon the report of Dr Thornton as the Second Defendant had not retained a paediatric endocrinologist for the purpose of the proceedings.
20It was submitted for the Defendants that application of case-management principles including the principles in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 ought see the Plaintiff's application for leave being refused.
21If the Court was minded to grant the Plaintiff leave, counsel for the Defendants submitted that leave ought be confined to reliance upon the report for the purposes of the issue of causation only, and not breach of duty. It was observed that there were parts of Dr Thornton's report which appeared to intrude into areas of breach of duty and that, if this point was reached, the Court should make clear that the report could not be relied upon by the Plaintiff on breach of duty, but solely with respect to the issue of causation.
22I approach the resolution of this application upon the basis that the Plaintiff could have served the report of Dr Thornton and relied upon it on causation, if service had been effected by 8 April 2011. That order was made at a time when the hearing date of 30 May 2011 was in place.
23The report of Dr Thornton was served on 2 May 2011. The hearing fixed for 30 May 2011 has now been vacated. The likely hearing date is now one commencing on 31 October 2011.
24There is some force in the Defendants' submissions that the Plaintiff appears to have been considering, and apparently obtained a report from a paediatric endocrinologist in 2006. If such a report was obtained by the Plaintiff, it has not been served. There is force as well in the submission that a significant time has passed since the service by the First Defendant of the report of Associate Professor Cameron in late 2008 and the service by the Plaintiff of the report of Dr Thornton on 2 May 2011.
25That said, the Plaintiff would have been entitled to rely upon Dr Thornton's report without further order of the Court, if it had been served by 8 April 2011. The evidence demonstrates that the Plaintiff's legal representatives were taking steps in mid-March 2011 to obtain a report from Dr Thornton, but that there was a breakdown in communication which lost time in that process, contributing to the late service of Dr Thornton's report.
26Insofar as the Defendants complain that the service of Dr Thornton's report on 2 May 2011 is a response to the Plaintiff's perception that the joint breach of duty experts' report is unhelpful to the Plaintiff, the appropriate course for the Court to take, if leave is granted to the Plaintiff to rely upon Dr Thornton's report, is to confine its use to causation only so that the Plaintiff cannot seek to call the report in aid, in some way, on the issue of breach of duty.
27I have regard to the history of the proceedings and the point that has been reached in anticipation of the hearing, now vacated from 30 May 2011 and likely to commence later this year. In all the circumstances, I am persuaded that the appropriate order is to grant the Plaintiff leave to serve and rely upon the report of Dr Thornton for the purposes of the issue of causation only.