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[2011] NSWSC 399
Supreme Court of NSW
2011-05-05
Johnson J, Mr J, Rothman J
Original judgment source is linked above.
Judgment (on Plaintiff's application for appointment of a facilitator to attend reconvened breach of duty experts' conference and for leave to rely upon the report dated 1 may 2011 of dr paul thornton on the issue of causation) 1JOHNSON J : This is the latest judgment in a series of interlocutory applications with respect to a claim for damages in complex civil proceedings arising from alleged medical negligence. (A general background to the proceedings may be found in my judgment KF By Her Tutor RF v Royal Alexandria Hospital for Children known as the Children's Hospital Westmead and Anor [2010] NSWSC 891). In a judgment of 3 May 2011, I vacated the then hearing date of 30 May 2011 (with a four-week estimate). The present expectation is that the proceedings will be fixed for hearing to commence on 31 October 2011, although an order to that effect has not yet been made. 2There are two issues which require resolution by the Court: (a) the Plaintiff's application for the appointment of a facilitator under Rule 31.24(2)(c) Uniform Civil Procedure Rules 2005 ("UCPR") to attend the reconvened meeting of the breach of duty experts on a date to be fixed; (b) the Plaintiff's application for leave to serve and rely upon the report dated 1 May 2011 of Dr Paul Thornton, paediatric endocrinologist.
The Facilitator Application 3In circumstances explained in my judgment of 3 May 2011, there is to be a reconvened conference of expert witnesses concerning breach of duty so that the direction of Rothman J made on 21 April 2011 may be complied with. The intention of that direction was that the experts cause to be completed a Schedule of Responses (containing a series of columns) so as to shed further light upon the short report which emanated from the breach of duty experts' conference on 31 March 2011. 4Senior counsel for the Plaintiff submits that a facilitator should be appointed under the UCPR to assist the completion of the document at the reconvened breach of duty experts' conference. Mr Connor SC submits that such an order is appropriate in this case to ensure that the intention of Rothman J's order is achieved. He submits that a facilitator such as a retired Judge would be appropriate in this case. 5Counsel for each of the First and Second Defendants opposes an order appointing a facilitator. It is submitted that the experts' conference having been held without a facilitator, the introduction of such a person at this point for the reconvened conference may serve to in some way deflect the process. It was submitted that, although some 10 experts were to participate personally or by telephone in the reconvened meeting, the task to be undertaken in completing the Schedule of Responses for the reconvened conference was not as complicated as the Plaintiff suggests, so that the introduction of a facilitator was not appropriate or necessary. It was submitted that a written preamble directed to the experts would suffice to explain what is required at the reconvened conference. 6It was submitted as well, for the Defendants, that the introduction of a facilitator may slow the process down and add significant expense which the parties to the litigation would have to bear. 7Rule 31.24(2)(c) UCPR gives the Court the discretionary power to direct that a joint expert witness conference be held with or without the attendance of a facilitator (that is, a person who is independent of the parties and who may or may not be an expert in relation to the matters in issue). 8There does not appear to be any authority which has considered the provision for appointment of a facilitator in the UCPR. Prior to the insertion of the facilitator provision in the UCPR, Studdert J ordered that an independent person be appointed to act as chairperson at a joint expert conference: Habelrih v Szirt [2004] NSWSC 54. At that time, provision was made, in now repealed Practice Note 121 entitled "Joint Conferences of Expert Witnesses" at [18], for the appointment of a person as chairperson of the joint expert conference. That decision does not provide particular assistance in the construction and application of the facilitator provision now contained in the UCPR. 9The discretion to direct the attendance of a facilitator at a joint expert conference falls to be exercised in the circumstances of the particular case. The fact that a joint expert conference has already been held, without the use of a facilitator, operates against the introduction of a facilitator at a reconvened conference. That said, it is necessary to have regard to the unusual circumstances of this case in which a reconvened conference is to take place for the purpose of providing an expanded document which responds to the Schedule of Responses as directed by Rothman J. 10As observed in my judgment of 3 May 2011, the joint experts' report contains a large number of answers (in excess of 85) which state succinctly "No" , with at some points, short amplification. The reconvened expert conference will involve the 10 breach of duty experts meeting, with some, of necessity, participating by telephone. There is a precise task required of the experts at the reconvened conference. It is not a fresh conference to proceed as if the original conference had not taken place. Rather, the reconvened conference is to take place for the purpose of the completion of the Schedule of Responses which will result in a more detailed response to the questions posed to the experts. 11I do not accept the submission for the Defendants that a written preamble will suffice to facilitate the production of a document at the reconvened breach of duty experts' conference which will achieve the purpose intended for that conference. A written preamble is appropriate, but should be utilised in conjunction with a facilitator who seeks to make easier or help forward or assist the progress of the reconvened meeting. This, after all, is the meaning of the word "facilitate" , a word chosen by the UCPR rulemakers for insertion in Rule 31.24 UCPR. 12The appointment of a facilitator will serve to explain to the experts the nature of the task to be undertaken at the reconvened conference, with the facilitator then guiding the experts through the Schedule of Responses so that the intended purpose of the reconvened conference is achieved. It is, of course, no part of a facilitator's function to engage in debate with the experts. Rather, the task will be confined to the orderly working through of the Schedule of Responses so that it is completed to the satisfaction of the conferring experts. 13In the unusual circumstances of this case, I am persuaded that the appointment of a facilitator will assist the process at the reconvened breach of duty experts' conference. I do not accept the Plaintiff's submission that this task calls for the appointment of a retired Judge to act as a facilitator. In my view, an experienced barrister or solicitor would be able to fulfil this function. If the parties cannot agree promptly on a barrister or solicitor to fulfil this task, I will direct each party to provide a list of three names from which I will select the facilitator to be appointed.
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.
Orders 28I make the following orders: (a) pursuant to Rule 31.24(2)(c) Uniform Civil Procedure Rules 2005 , I direct that a facilitator attend the reconvened experts' conference concerning breach of duty on a date to be fixed; (b) if the parties cannot agree within 14 days upon the identity of a barrister or solicitor to act as facilitator for this purpose, each party is directed to furnish to my Associate within 14 days a list containing at least three names of barristers or solicitors proposed by that party as an appropriate facilitator for the purpose of the reconvened conference; (c) I grant leave to the Plaintiff to serve and rely upon the report dated 1 May 2011 of Dr Paul Thornton for the purposes of the issue of causation only. 29I will hear the parties on the form of orders which ought be made to give effect to these orders, as well as such further orders as are appropriate, including the fixing of a date for hearing of the proceedings.
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: 20 May 2011
KF By Her Tutor RF
Royal Alexandra Hospital for Children known as the Children's Hospital Westmead and Anor