McMeekin v Prince of Wales Private Hospital

The pleadings

1. The 2FASC at [17] pleads: "17. At about 13:50 hours on 16 September 2012 the second defendant telephoned to the delivery suite at the first defendant hospital and there spoke to senior midwife Bronwyn Ashley. a. As at the time of that conversation the second defendant had not met or examined the plaintiff and was prior to that conversation unaware of her or her circumstances. b. As against the first defendant the plaintiff says midwife Ashley informed the second defendant only: (i) The plaintiff was 26 weeks gestation; (ii) The plaintiff was feeling unwell; (iii) The microscopic results demonstrated an elevated white cell count and the presence of haematuria. c. As against the first defendant the plaintiff says that midwife Ashley did not inform the second defendant in that conversation that: (i) The plaintiff was 48 years of age; (ii) That was the plaintiff's first pregnancy; (iii) That this plaintiff was pregnant as a result of In Vitro Fertilisation; (iv) That the plaintiff presented on this occasion with a history of headache and pain on the back of her neck; (v) That the plaintiff presented with blurred vision; (vi) That the plaintiff presented with swelling of the eyes and face; (vii) That the plaintiff presented with mild oedema of her feet; (viii) That the plaintiff had not been vomiting or suffering diarrhoea; (ix) That the plaintiff did not present with frontal headaches; (x) That at 11:00 hours the plaintiff's blood pressure was 140/80; (xi) That at 13:00 hours the plaintiff's blood pressure was 140/90; (xii) That urinalysis revealed a protein level of 3 +++; (xiii) That the plaintiff during her antenatal visits exhibited a relatively low blood pressure. d. As against the second defendant the plaintiff says that during the said conversation midwife Ashley informed the second defendant: (i) That the plaintiff had presented in the birthing unit was 26 weeks gestation and feeling unwell [sic]; (ii) The results of the urinalysis test undertaken by midwife Ashley or another member or the staff of the first defendant hospital."

The first defence to the 2FASC

1. The amended defence of the first defence to the 2FASC at [13] pleads: "13 In answer to paragraph 17 of the [2FASC], the First Defendant: a) says that the Second Defendant telephoned senior midwife, Bronwyn Ashley, at or around 13:50 hours; b) says that the Second Defendant did not advise Ms Ashley that he had not met or examined the plaintiff or that he was unaware of her circumstances; c) says that Ms Ashley advised the Second Defendant of the matters alleged in subparagraphs (b)(i), (ii) and (iii); d) denies that Ms Ashley informed the Second Defendant only of the matters set out in subparagraphs (b)(i), (ii) and (iii); e) says that Ms Ashley advised the Second Defendant of the Plaintiff's blood and urinalysis results that were available to her at the time; f) denies subparagraph (c); g) says that Ms Ashley informed the Second Defendant: (1) that the plaintiff was 48 years of age; (2) that it was the plaintiff's first pregnancy; (3) that the plaintiff was pregnant as a result of In Vitro Fertilisation; (4) that the plaintiff presented on 16 September 2012 with a history of headache and pain at the back of her neck and blurred vision; (5) that the plaintiff and her partner stated she was puffy around the eyes the previous day; (6) that the plaintiff presented with mild oedema of her feet; (7) that the plaintiff had not been vomiting or suffering diarrhoea; (8) that the plaintiff did not present with frontal headaches; (9) that at 1100 hours the plaintiff's blood pressure was 140/80; (10) that at 1300 hours the plaintiff's blood pressure was 140/90; and (11) that urinalysis revealed a protein level of +++; h) does not admit subparagraph (d); i) otherwise does not admit the balance of the paragraph."

The interrogatories

1. In the interrogatories, the "first attendance" refers to the plaintiff's first attendance at the first defendant's hospital at about 11:00 am on 16 September 2012.
2. The "subject conversation" refers to a conversation between a member of staff of the first defendant and the second defendant, which is the conversation referred to in p 13 of the first defendant's defence filed 30 May 2017.
3. The relevant interrogatories are as follows:
4. State the terms of the conversation that took place in the subject conversation by reference to what was said by each of the parties to the other in that conversation.
5. What were the "blood results" shown as a result of the analysis of the plaintiff's blood on the occasion of her first attendance and referred to in paragraph 13b of your Defence filed 30 May 2017?
6. What were the "blood test results" referred to in paragraph 13b of your Defence filed 30 May 2017 relating to the plaintiff and which were conveyed by the hospital staff to the second defendant in the subject conversation?
7. What were the urinalysis results made as a result of the analysis referred to in paragraph 13b of your Defence filed 30 May 2017 undertaken of the plaintiff's urine during the occasion of her first attendance?
8. What were the urinalysis results made as a result of the analysis referred to in paragraph 13b of your Defence filed 30 May 2017 undertaken of the plaintiff's urine during the occasion of her first attendance and which were conveyed to the second defendant during the subject conversation?
9. Did the second defendant ask any questions of the staff of the first defendant in the subject conversation concerning the plaintiff?
10. If the answer to Interrogatory 6 is in the affirmative, specify any such questions.
11. If the answer to Interrogatory 6 is in the affirmative, what response, if any, did the staff of the first defendant give to the second defendant during the subject conversation?
12. Did any member of the first defendant's staff make any diagnosis of or concerning the plaintiff during her first attendance?
13. If the answer to Interrogatory 9 is in the affirmative, specify: a. any such diagnosis; b. the title of the person who made such diagnosis; and c. what examinations, tests or history did the member of the first defendant's staff rely for the purpose of making such diagnosis.
14. If the answer to Interrogatory 9 is in the affirmative, did any member of the staff of the first defendant convey that diagnosis to the second defendant during the subject conversation?
15. Did any member of the first defendant's staff form an opinion of any medical condition of or concerning the plaintiff during her first attendance?
16. If the answer to Interrogatory 12 is in the affirmative, specify: a. any such opinion; b. the title of the person who made such opinion; and c. what examinations, tests or history did the member of the first defendant's staff rely for the purpose of forming such opinion.
17. Did the midwife attending upon the plaintiff on the occasion of the first attendance form the view that the symptoms with which the plaintiff presented on that occasion together with the results of her blood pressure reading and the urinalysis gave rise to any concern that the plaintiff may be suffering from pre-eclampsia?
18. If the answer to Interrogatory 14 is in the affirmative did midwife attending the plaintiff on that occasion take any steps in consequence of forming that review [sic]?
19. If the answer to Interrogatory 14 [is in the] affirmative what steps did that midwife then take?
20. Counsel for the first defendant submitted that after the 2FASC was filed, due to the amendments, interrogatories 17-21 are no longer relevant. The plaintiff is to redraft these interrogatories once a 3FASC is filed. In these circumstances, the first defendant is not obliged to answer interrogatories 17-21.
21. There is no dispute between the parties as to the law in relation to interrogatories.

Legal principles

1. Rule 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") relevantly reads: "22.1 Interrogatories (1) At any stage of the proceedings, the court may order any party to answer specified interrogatories. (2) An application for such an order must be accompanied by a copy of the proposed interrogatories. (3) In the case of proceedings on: (a) a claim for damages arising out of the death of, or bodily injury to, any person, or (b) a claim for contribution in relation to damages so arising, such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order. (4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made. …"
2. The plaintiff referred to Keating v South East Sydney lllawarra Area Health Service (NSWSC, 7 July 2006, unreported) ("Keating") and a recent case of Ahmad v South Sydney Western Sydney Local Area Health District [2018] NSWSC 1327 ("Ahmad"). The first defendant referred to Venacom Pty Ltd v Morgan Brooks Pty Ltd [2006] NSWSC 46 ("Venacom"). The plaintiff was unable to obtain the information other than by administering the interrogatories.
3. In Keating, Hall J stated at [8] to [10]: "[8] It has been submitted on behalf of the defendant that the interrogatories are neither necessary nor would the Court be satisfied that special reasons exist that would justify the making of the order sought. It is necessary to say something generally about the approach to interrogatories in medical negligence cases such as the present. In my view there are four matters that are relevant to both the issue of necessity and the issue of special reasons. The first is the nature of the litigation in the proceedings and in that respect these proceedings are proceedings alleging medical negligence against medical advice, namely, the hospital and a medical practitioner, in relation to what is asserted to be negligent treatment of the deceased. The issues in that respect, in my view, mark this case out as one which can be properly and fairly described as involving complex medical issues. The second matter is the nature of the issues that exist in relation to the discrete element of the tortious cause of action, the elements being duty of care, breach of duty and causation and ultimately damage or damages. [9] In relation to the element of the breach of duty, there are, in my view, issues of some complexity arising in the circumstances of these proceedings. The third issue to be considered, in my opinion, is both the nature and the complexity of the factual issues arising in respect of any one or all of the elements of the pleaded cause of action. In the present proceedings, clinical records and hospital notes do disclose certain factual matters, as do reports and investigations, but I am satisfied, as I will shortly indicate, that there are factual issues and secondary issues based on them that are not readily apparent from the hospital notes and clinical records. The fourth issue relevant to necessity and special reasons is the question of the need for access to material within the knowledge of the defendant or defendants by the plaintiff for the purposes of ensuring a fair disposition of the proceedings. In this latter respect, the observations made by Griffiths, CJ in Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911-1912) 113 CLR 101 at 109 to 111 are in point, as indeed are the observations of Mason P in Schutt v Queenan & Anor [2000] NSWCA 341 at paras 11 to 14. [10] In light of the matters relevant to those four issues, qualifications must then be made as to whether there is indeed a necessity and whether there are special reasons that justify the making of orders under Pt 22 permitting a party to ultimately interrogate another or others."
4. His Honour continued at [16], [17], [20] and [23] to [25]: "[16] It is not the case that because a plaintiff is in a position to obtain detailed medical reports sufficient to commence proceedings or present a case, that that of itself precludes the plaintiff from being granted leave to administer interrogatories. It is clear that there are many matters, including matters relating to the initial matter that was identified by Mr Graham, that are not recorded or fully recorded in documents. Many of such matters will be within the knowledge that is within the mind of medical practitioners who are involved in Mr Keating's treatment and it is only when they are asked questions about those matters that the full story may emerge. [17] A plaintiff should not be deprived where there is unrecorded but important, relevant and potentially significant information of having to wait until trial to learn as to what these matters may be. At the end of the day, the question has to be what is necessary and are there special reasons that will ensure, as it were, an even playing field. By that I mean that the plaintiff will have the opportunity to have his or her proceedings decided fairly, that is, that the proceedings can be fairly disposed of. … [20] In Haywood v Collaroy Services Beach Club [2005] NSWSC 1203, at [15], Rothman J set out the issues upon which questions were sought related to matters which indicate what are relevant to the issues of necessity and special reasons. His Honour isolated them as: '(a) the questions are concerned with subjects that, as between the parties, are largely or peculiarly within the knowledge of the defendant; (b) involve complex questions going to the relationship (legal and otherwise) between the defendant and third parties; (c) would, for the plaintiff, otherwise be very difficult or impossible to prove or would be such that probative evidence on such issues would be difficult or impossible to obtain.' … [23] In Cavric v Coopers & Lybrand (ACT) Ltd & Anor [2002] NSWSC 538, … Harrison AsJ reviewed the authorities in relation to special reasons. It is unnecessary here to repeat what her Honour has set out but to mention it in brief point form. [24] In point form, firstly, that the words 'special', 'conditioning', 'reasons' or 'circumstances' guard the entrance to many different statutory discretions. It is generally futile to search for its meaning in terms of other words. Secondly, that it is, in essence, instrumental, a direction to the decision maker that the discretion it constrains is not lightly to be enlivened. Thirdly, circumstances or reasons will not necessarily fall outside the designation of 'special' because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise. Fourthly, the core of the requirement for 'special circumstances' or 'special reasons' is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course, and finally, that does not require that the case be extremely unusual, uncommon or exceptional. Her Honour at [13] stated: '"Special" can be said to be exceptional, has a distinct, individual or instrumental character. "Special" indicates to the decision maker that the discretion is one which is not lightly enlivened. However, 'special reasons' is an elastic instruction suitable for application across a range of situations.' [25] I respectfully concur with her Honour's observation in that last mentioned paragraph."
5. The plaintiff also referred to Ahmad, where Davies J stated at [13] and [14]: "[13] In Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498 Garling J said: [50] Whilst it is clear that 'special reasons', as a phrase, is an inexact one, capable of some elasticity in interpretation: see Keating v South East Sydney Illawarra Area Health Service (Supreme Court of NSW, 7 July 2006, unreported) at [24]-[25] per Hall J, it is necessary for an applicant for an order to show that there is something unusual or different which takes the matter out of the ordinary course: Priest v State of New South Wales [2006] NSWSC 12 at [126] to [128] per Johnson J; Keating at [24]; Boscolo at [18] per French J (as his Honour then was). [51] Typically, but not exclusively, what will take the matter 'out of the ordinary' is: (a) an inability to obtain the requisite factual material without the exercise of the discretion; (b) that the applicant is in a position of some disability or disadvantage; (c) the complexity of the subject matter is such that without the exercise of the discretion, real prejudice will result to the applicant; (d) that in order to achieve the just, quick and cheap resolution of the real issues in the proceedings, the discretion should be exercised. [52] In addition, as with all questions of discovery, an issue of relevance must be satisfied, namely that the material sought to be discovered, and the answers to interrogatories will relate to a fact in issue. There are also other discretionary considerations. [14] In Edwards v Hornsby Shire Council [2014] NSWSC 600, a case where personal injury damages were claimed, Schmidt J said: [16] The question of necessity must be approached as meaning 'reasonably necessary for the disposing fairly of the cause or matter' or 'necessary in the interests of a fair trial' (see Boyle v Downs [1979] NSWLR 192 at 205 per Cross J and Percy v General Motors-Holden's Pty Ltd [1975] 1 NSWLR 289 at 292 per Rath J). [17] Further, as discussed by Ward J in In the matter of Gerard Cassegrain & Co Pty Ltd, Re; Cassegrain v Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241 [("Cassegrain")] at [27] and [31]: '[27] Where the interrogatories seek information "within the knowledge of the defendants", it might be expected that the test of necessity will be readily satisfied (as it was, for example, in Keating v South East Sydney Illawarra Area Health Service). ... [31] In Spedley Securities Ltd (in liq) v Yuill (No 4) (1991) 5 ACSR 758 Cole J said, of the principles applicable regarding interrogatories, (at [762]): 1. The object of interrogatories is to discover the truth. It has also the advantage of saving expense. When inquiry is made as to a matter which is entirely within the knowledge of the defendant and not within the knowledge of the plaintiff, and is relevant to the case, I do not know of any rule why the defendant should not be interrogated about it: Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101 at 111; Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd (1969) 123 CLR 514 at 518. 2. Generally speaking, a party may interrogate his opponent as to every relevant matter on which he could examine him, if he thought fit to call him as a witness at the trial: Lyell v Kennedy (1883) 8 App Cas 217 at 234; Hawkes v Schubach [1953] VLR 468 at 471; Coal Cliff Collieries Pty Ltd v C E Heath Insurance Broking (Australia) Pty Ltd (1986) 5 NSWLR 703 at 709.' [18] It is no answer to a proposed interrogatory that a document produced on subpoena deals with the topic or that a specific question is answered by the content of the document. Answers which are sought by the interrogating party must be material in the sense that they may enable that party to maintain its case and may be pursued, even if they destroy the opponent's case. A party is also entitled to seek admissions. As Ward J also discussed at [26]: 'It is recognised that a legitimate purpose of interrogatories is that the answers will inform the plaintiff as to evidence to be obtained and may save the expense of proving part of its case (Attorney-General v Gaskill (1882) LR 20 Ch D 519 at 527 per Jessel MR, applied in Taylor v Santos Ltd [2000] SASC 305 and Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 2) [2008] WASC 204).'"
6. Davies J continued at [17] and [23]: "[17] One other matter should be mentioned before proceeding to discuss the disputed interrogatories. As I have noted, the statement of claim asserted, and the defence agreed, that the common bile duct had been transected. However, both Professor Cox and Professor Richardson refer at various places in their reports to the common hepatic duct being transected. Similarly, the particulars assert that the common hepatic duct was transected. The assertion in the statement of claim derived from Professor Merrett's notes of the operation he carried out on 19 December 2014 involving the construction of a Roux-en-Y loop and the hepatico-jejunostomy. … [23] In my opinion, the objection taken is not a proper one. A party may only object to answering an interrogatory on one of the three grounds set out in r 22.2. Further, in In the matter of Gerard Cassegrain & Co Pty Ltd - Cassegrain v Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241, Ward J (as her Honour then was) said: [34] Relevantly, for the purpose of considering some of the objections made the present application (sic), whether the interrogating party can prove the matter in question by some other means has been said not to be a ground for refusing the interrogatory (Lyell v Kennedy (1883) 8 App Cas 217 at 228; James v Davies (1883) 9 VLR (L) 140). In Lyell, in the House of Lords, the Lord Chancellor at 228 said: It is no sufficient objection that the plaintiff may have, and to some extent (on his own shewing) has, other means of proving the facts inquired after. Admissions of facts by the defendant might simplify the proof and materially diminish the expense of trial."
7. In Venacom, Campbell J stated at [12]: "[12] … The principles upon which interrogatories are required to be drafted include that they take the form of questions which could be asked of a witness in the witness box in evidence-in-chief: Powell v Wilson and McKinnon (1908) VLR 574, James v Davis (1883) 9 VLR L140. It may be that some of the interrogatories which are in issue fail to meet that test, because they seek to have an answer to a question which asks what is the mental state of a corporation at a particular time. However, I will not make the decision concerning interrogatories on that basis, or on the basis of any other deficiencies there might be in individual interrogatories. Under Uniform Civil Procedure Rule 22.1(4) the Court is not to make an order for interrogatories unless the Court is satisfied that the order is necessary at the time it is made. In my view, when the plaintiff's evidence-in-chief has not been put on, it is premature for any interrogatories at all to be delivered. ...."
8. Venacom was not a medical negligence case. It involved an allegation of fraud.

The plaintiff's submissions

1. In Keating, as is the position in the present case (Aff Milo 18/10/2018 at page 30), the hospital records did not provide adequate information on the relevant issue. The conversation that occurred between the midwife of the first defendant hospital and the second defendant in this case cannot be known to the plaintiff excepting from information supplied by the defendants. Nor can the plaintiff determine the events that occurred without such information, not only because she was not a party to the conversation or events that occurred outside of her hearing and the sparsity of the information in the hospital records, but also because of the sparse information contained in the pleadings of the defendants. As Hall J pointed out in Keating, the fact that the knowledge of these matters is particularly that of the defendants provides a proper basis for the order sought being made.
2. Concerning interrogatories 1-8, the plaintiff submitted that the interrogatories sought to be raised go to the establishment of the possible liability of both defendants, because if there has been a failure on the part of the midwife to inform the second defendant as to the outcome of the pathology analysis of the urine, then clearly that would be an important factor in establishing a case against the first defendant. Conversely, if that information was imparted to the second defendant, the case against the second defendant is considerably strengthened. But this aspect of the matter does not end there. This is because the full exposing of the conversation may very well dictate the likelihood or otherwise of the asserted versions of the information said to have been imparted, and whether such information that was imparted may have properly put the second defendant in a position where he ought to have made further enquiries of the midwife. Further, the plaintiff does not know what is encompassed in the expression "inter-alia" used by the first defendant in paragraph [13(b)].
3. On the facts of this case, the position of each of the defendants depends very much upon what was conveyed in the conversation that took place between the midwife and the second defendant. Equally, the plaintiff can only know from the defendants the extent to which each made a "diagnosis", and the reliance, if any, each of those persons placed on the other.
4. It is not known what steps, if any, the midwife took to escalate her enquiries within the hospital in accordance with hospital policy. That policy has only recently been provided to the plaintiff. The proper analysis of the advice given by the second defendant and any "diagnosis" or "opinion" made or given by the midwife, can only be undertaken by the disclosure of the parties concerned.
5. The first defendant, in a letter written on its behalf dated 30 November 2018, seeks to maintain the position that interrogatories 9, 10 and 11 (which go to the issue of whether the first defendant's staff made a diagnosis) are irrelevant. The first defendant maintains that the second defendant did make such a diagnosis (Def, 30/5/2017 at [13c]). The second defendant says that he was "advised by the midwife that in her opinion, the plaintiff had a urinary tract infection" (Def, 21/6/2017 at paragraph [13(d)]). It is submitted that it is pure sophistry to draw a distinction between the expression of that medical opinion as to the nature of the plaintiff's condition and "a diagnosis". The proper role of the midwife is set out in the report of Professor Maralyn Foureur of 24 May 2017.
6. Moreover, there is an issue in this case concerning the possible failure of the midwife to escalate the matter. If, as the midwife may be maintaining, she fully disclosed all the symptoms and test results to the second defendant, then it will be argued that the evidence demonstrates that there ought to have been real concern that the second defendant did not properly respond to the circumstance, such that in accordance with the hospital protocol, she ought to have escalated the matter. Accordingly, first defendant's submission that interrogatories 9 to 16 are irrelevant is unsustainable. The authorities make it clear that in such cases, the basis upon which any opinion is formed is relevant in such circumstances and as such, interrogatories seeking the basis of such opinions are allowable in appropriate circumstances such as the present.
7. The true issues in this case can only be properly resolved (and the plaintiff not prejudiced) by the disclosure sought in the proposed interrogatories. This is particularly so when it is clear that the plaintiff was not accorded proper medical investigation, advice and treatment, and when the relevant parties, who as between them in one way or another were responsible for those circumstances, do not fully disclose the events that occurred between them. The plaintiff would be placed in a position of having to contend with a circumstance in which one or both of the defendants must be liable, but when there is not full disclosure as to what passed between them.
8. For those reasons the plaintiff submitted that circumstances are such as to make the interrogatory "necessary". The accepted test of necessity is "what is reasonably necessary for the disposing fairly of the matter or necessary in the interests of a fair trial": see Schutt v Queenan [2000] NSWCA 341 at [12], as quoted by Hall J in Keating at [18].
9. The most recent statement of the principles applicable to all applications orders to answer is set forth in Ahmad, and concerns claims for damages arising out of injury, particularly in medical negligence cases. In that case, Davies J referred with apparent approval to the views expressed by Hall J in Keating concerning both the question of "necessary" and "special reasons". In doing so, his Honour considered the special complexity and circumstances associated with medical negligence claims.
10. This is a case having many of the hallmarks of the type of complexity one not uncommonly finds in medical negligence cases; the fact that such cases fall into such a category does not, as Hall J in Keating pointed out, detract from the case being one in which there are "special reasons".
11. It is clear that the plaintiff would be at some real disadvantage if the interrogatories are not answered.
12. Davies J in Ahmad also drew attention to the statement made by Ward J in Cassegrain, in which her Honour adopted the words of the Lord Chancellor in Lyell v Kennedy (1883) 8 App Cas 217 where his Lordship said at [228], "[I]t is no sufficient objection that the plaintiff may have, and to some extent (on his own shewing) has, other means of proving facts enquired after". That reason alone suggests that leave should be granted, not to mention the requirement, the relevance which Hall J made clear in Keating, to achieve a just, quick and cheap resolution of the real issues. Accordingly, it is no answer for the first defendant to assert that the answers may be revealed at trial.
13. The plaintiff submitted that the experts will have to address both versions of the conversation, and this may have to be done by way of supplementary reports. Then the experts will be in a position to include their view in the joint report. Further, it should be borne in mind what was said by Hall J in Keating at [17] about the level playing field, in that the plaintiff will have the opportunity to have his or her proceedings decided fairly, so that the proceedings can be fairly disposed of.

First defendant's submissions

1. The first defendant submitted that leave should not be given to administer the interrogatories.
2. The first defendant submitted that where there is the probability of directions being made for the filing of affidavits and/or witness statements, it ordinarily is difficult to satisfy the Court that a proposed interrogatory is "necessary": see Venacom at [12].
3. Secondly, as a general proposition, it will only be necessary to administer interrogatories if they relate to matters in issue on the pleadings.
4. Thirdly, as a general rule, it is not proper to interrogate for the purpose of obtaining details about the manner in which a party intends to prove their case (see West v Conway (1923) 23 SR (NSW) 344 at 347), or as to witnesses to be called: see Knapp v Harvey [1911] 2 KB 725 at 732.
5. As a preliminary point to the points of substance, the interrogatories themselves are misleading and confusing. They refer to "the subject conversation" being the conversation being referred to in paragraph [13] of the Hospital's defence filed 30 May 2017. Those interrogatories could not be said to be necessary at the time the order is made, because of the fact that the plaintiff has now filed the 2FASC.
6. The plaintiff has made it clear (2FASC at [17]) that she is in a position to make detailed and precise allegations about "the subject conversation". Not only is the plaintiff presently in a position to make detailed allegations of fact about "the subject conversation" in paragraph 17, she also is in a position (2FASC at [30]) to make detailed and serious allegations of negligence against the hospital arising from the allegations arising from "the subject conversation".
7. Thirdly, the interrogatories plainly offend the general principle that interrogatories should not be ordered with respect to the manner in which a party will prove their case.
8. Fourthly, the interrogatories offend the principle that leave should generally not be granted in circumstances where there is the possibility that evidence sought by the interrogatory may be available in any event: see Venacom. These proceedings are in the professional negligence list, and there will be an order that the parties serve affidavits or witness statements.
9. Additionally, the interrogatories are unnecessary at this time, as the case has been moving on for years and they will delay it being fixed for trial. There are costs considerations that also weigh against the plaintiff (T18.42-49). Contrary to s 56 of the Civil Procedure Act 2005 (NSW) ("CPA"), the administering of interrogatories will incur more expense to the parties, as they will have to obtain supplementary reports from their experts in relation to the answers to the interrogatories. The experts will need to consider what their opinions will be if the first defendant's version is accepted. At trial, it may be that some of each defendant's version may be accepted. This will also delay the hearing.
10. Finally, it is submitted that interrogatories cannot go to state of mind, and are therefore impermissible (see Venacom at [12]) (T20.3-7).

Conclusion

1. This is a medical negligence case. The conversation is peculiarly within the knowledge of the defendants. It would be difficult for the plaintiff to prove or obtain this evidence.
2. I agree that the first defendant has made a considerable effort to plead what it alleges to be "the conversation". The plaintiff was not present when the conversation took place, and there is a serious dispute between the first and second defendants as to the contents of that crucial conversation. The second defendant has provided his version of the conversation in his answers to interrogatories. The first defendant has not.
3. In regard to s 56 of the CPA, there will be delay and expense incurred whether or not the interrogatories are allowed. To my mind, so far as expense, delay and justice are concerned, the better approach is to administer interrogatories to the first defendant, and have the experts provide a supplementary report covering both versions of the conversation. That way, the experts can discuss the ramifications of both versions of the conversation in preparing their joint reports. With respect to the midwife's state of mind, she allegedly expressed an opinion. In other words, it goes not so much to her state of mind, but rather to the information she articulated to the second defendant.
4. The plaintiff should not be deprived of having relevant and potentially significant (if unrecorded) information, and be kept waiting until trial to learn what these matters may be. The question is what is necessary, and are there special reasons that will ensure there is an even playing field. That is, the plaintiff will have the opportunity to have her proceedings decided fairly, so that they can be fairly disposed of. There is no doubt that the midwife's version of the conversation goes to a critical issue in dispute between the parties.
5. In my view, interrogatories 1-16 addressed to the first defendant are necessary at this time. There are special reasons, as defined earlier, as to why the plaintiff should be permitted to administer them. I grant leave to the plaintiff to administer interrogatories 1-16 to the first defendant.

Costs

1. The appropriate order for costs is that costs be costs in the cause.

The Court orders that: (1) The plaintiff is granted leave to administer interrogatories 1-16 to the first defendant. (2) Costs of the motion are costs in the cause.

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: 07 March 2019