Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service

[2018] NSWSC 1621

Supreme Court

New South Wales

Medium Neutral Citation:	Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service [2018] NSWSC 1621
Hearing dates:	24 October 2018
Date of orders:	25 October 2018
Decision date:	25 October 2018
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Leave refused
Catchwords:	CIVIL PROCEDURE – expert reports – late filing and service of expert report – where no exceptional circumstances – leave not granted
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 31.28
Cases Cited:	Harris v Bellemore [2011] NSWCA 196 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290
Category:	Procedural and other rulings
Parties:	James Phillip Coffey by his tutor Kathleen Amanda Coffey (Plaintiff) Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service (Defendant)
Representation:	Counsel: JA Hillier (Plaintiff) R Cheney SC with J Downing (Defendant)   Solicitors: Commins Hendriks Pty Ltd (Plaintiff) Curwoods Legal Services Pty Ltd (Defendant)
File Number(s):	2011/108788
Publication restriction:	Nil

Judgment

1. HIS HONOUR: These proceedings were commenced on 31 March 2011. The final hearing is scheduled to commence on 5 November 2018 with a current estimate of 4 weeks. Conclaves of experts in several fields of specialty are already underway.

2. Despite the imminence of the trial, the plaintiff moves the Court for orders that he be given leave to rely upon a report of Dr Ken Maclean, a paediatrician and clinical geneticist, dated 17 October 2018 and an associated direction that he be permitted to participate in a conclave of neonatologists due to commence at 10am tomorrow. These applications are opposed.

3. The plaintiff has already served reports from Dr Andrew McPhee, a senior consultant neonatologist.

4. On 5 October 2018, Garling J made a declaration, on the defendant’s application, that its solicitor was not precluded from interviewing Dr Preddy concerning his observations, treatment and care given to the plaintiff on 19 January 2004 at the Wagga Wagga Base Hospital and of the circumstances relating to that occasion. Following his Honour’s decision, the plaintiff’s solicitor, Mr Potter, conferred on 15 October 2018 with Dr Maclean concerning the genetic issues. During the course of that conference there was a general discussion about the plaintiff’s treatment and care on 19 January 2004. Intubation of the plaintiff on that day was also discussed. Mr Potter has now indicated in his affidavit sworn 22 October 2018 that “it became apparent that Dr Ken Maclean should provide an opinion as to these additional issues in his capacity as a paediatrician with experience in relation to those issues”. Dr Maclean’s 17 October 2018 report expresses the relevant opinion.

5. UCPR 31.28 provides as follows:

“31.28 Disclosure of experts' reports and hospital reports

(1) Each party must serve experts' reports and hospital reports on each other active party:

(a) in accordance with any order of the court, or

(b) if no such order is in force, in accordance with any relevant practice note, or

(c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.

(2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.

(3) Except by leave of the court, or by consent of the parties:

(a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and

(b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995 , is not admissible unless it has been served in accordance with this rule, and

(c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.

(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied:

(a) that there are exceptional circumstances that warrant the granting of leave, or

(b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).”

6. The extent to which, if at all, Dr Maclean’s 17 October 2018 updates an earlier version of any report by him served in accordance with subrule (1) was not argued before me. Any application by the plaintiff for leave to rely upon it for that limited purpose ought in the circumstances be left for consideration by the trial judge.

7. However, the defendant maintains that the plaintiff has not demonstrated or established exceptional circumstances that would justify or warrant the grant of leave that is sought. I agree.

8. With respect to the opinions of Mr Potter, whose concern to present the plaintiff’s case in the best evidentiary light is both commendable and understandable, the circumstances that give rise to the production of Dr Maclean’s opinions on resuscitation and intubation are not exceptional. It would seem that the circumstances surrounding the defendant’s access to Dr Preddy generated some further discussion between the plaintiff’s legal team and at least Dr Maclean. The fact that Dr Maclean raised the topic of these issues is no more and no less than fortuitous. It is something that is not unexpected in the course of preparation for an upcoming trial.

9. Part of the impetus for the plaintiff’s desire to rely upon Dr Maclean’s opinion on neonatal issues derives presumably from the not unnatural desire to maximise support for one side of a contentious factual or medical issue. So much is understandable. However, the existence of Dr McPhee’s eminent expert opinion on the relevant issues has been something upon which the plaintiff had at all times up until recently been prepared exclusively to rely. The fact that Dr Maclean has lately expressed a further supporting opinion is not exceptional in my experience in the conduct of cases of this kind. Moreover, it is unrealistic to expect that Dr McPhee will not by now have become aware of Dr Maclean’s opinions on resuscitation and intubation, and that he would be perfectly entitled to bring his understanding of those opinions, whether he agreed with them or not, to the conclave of neonatologists and to his answers in evidence if he is called as a witness.

10. Furthermore, directions for the service of expert evidence by the plaintiff have been given on several occasions over the preceding five years or so. It is also not without significance that the defendant served a report from its own neonatologist Associate Professor Evans as long ago as 31 October 2013. Far from there being exceptional circumstances to warrant the grant of leave to rely upon Dr Maclean’s recent report, it would in my experience be an exceptional circumstance to grant the leave sought: see generally Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66]; Harris v Bellemore [2011] NSWCA 196 at [103]–[112]; Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [86]–[89], [93]–[94].

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Decision last updated: 25 October 2018