Cotton v Spiro
[2025] ACTSC 398
•5 September 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Cotton v Spiro |
Citation: | [2025] ACTSC 398 |
Hearing Date: | 22 August 2025 |
Decision Date: | 5 September 2025 |
Before: | Muller AJ |
Decision: | See [35] |
Catchwords: | CIVIL PRACTICE AND PROCEDURE – INTERROGATORIES – medical negligence claim – application for leave to administer interrogatories – objections to application – operation of amended rr 630, 631 and 632 of the CPR – mandatory considerations – expert medical evidence – application partially successful |
Legislation Cited: | Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules2006 (ACT), rr 630, 631, 632 |
Cases Cited: | Mitchell v Australian Capital Territory [2023] ACTSC 239 |
Texts Cited: | Explanatory Statement, Court Procedures Amendment Rules 2023 (No 1) (ACT) |
Parties: | Elizabeth Mary Cotton ( Plaintiff) Calista Spiro ( Defendant) |
Representation: | Counsel L Edwards ( Plaintiff) K Pattenden ( Defendant) |
| Solicitors United Legal ( Plaintiff) Avant Law ( Defendant) | |
File Number: | SC 233 of 2024 |
MULLER AJ:
Introduction
The plaintiff, Elizabeth Cotton, alleges injury due to the medical services provided to her by Dr Calista Spiro, a bariatric surgeon, who performed surgery upon her in the form of a laparotomy and Roux-en-Y gastric bypass (RYGB) procedure on 15 July 2022. The plaintiff underwent a further laparotomy procedure on 22 July 2022. Ms Cotton had a prior history of gastric restrictive surgery, in the form of a vertical banded gastroplasty (VBG), performed in approximately 1997.
A laparotomy is an open abdominal surgery enabling access to a range of abdominal organs. An RYGB is a procedure that involves the creation of a small stomach pouch, with the digestive tract relocated to bypass the balance of the stomach, thus decreasing food intake and limiting nutrient absorption.
In this proceeding, the plaintiff alleges that Dr Spiro breached the duty of care that she owed to her in the provision of medical services. The allegations of negligence range from the adequacy of the advice received from the doctor about her condition and its management, to the suitability of the pre-surgery assessments undertaken, and to the appropriateness of the decision to proceed with the surgical procedure itself.
In her application in proceeding lodged on 31 July 2025, Ms Cotton seeks leave to administer interrogatories, in the form annexed to the affidavit of Robert Montagnino sworn 31 July 2025, in reliance on r 630 of the Court Procedures Rules2006 (ACT) (the CPR). The following grounds are identified as responsive to the mandatory considerations in r 632(2):
(a)Granting leave to administer interrogatories will likely save costs;
(b)The proposed interrogatories are significant and relevant to the substantive issues in the matter; and
(c)The likely time, cost and inconvenience of administering interrogatories will be less than the likely time, cost and inconvenience at hearing if leave is refused.
The defendant opposed the application for leave to administer interrogatories. In affidavit evidence filed in support of her objection, the focus of the defendant was on the lateness of the request to interrogate, noting that a hearing date has now been set. In oral submissions counsel for the defendant argued that the proposed interrogatories were in large part irrelevant or unnecessary and, to the extent that they were made in reliance upon opinions expressed in a recently obtained expert medical report, they were outside the scope of the claim as presently pleaded by the plaintiff.
General principles
Rule 630 was amended with effect from 1 July 2023, introducing the threshold requirement for leave before interrogatories may be administered. The Explanatory Statement issued in respect of this rule change stated, relevantly:
Rule 630 is amended to require that interrogatories are to be issued by order of the Court and no longer available as of right. Requiring interrogatories to be issued by order of the Court provides for Court supervision over what can be a lengthy and costly process, in accordance with main purpose of civil procedure provisions under s 5A of the Court Procedures Act 2004. The amendments to rr 633, 636 and 672 are consequential to the amendment to r 630.
An effect of the amendments was to require the filing of an application, supported by an affidavit annexing or exhibiting the proposed interrogatories. The mandatory considerations in r 632(3), continued unchanged following the amendment to r 630. Thus, there remains in place a mandatory, but not exhaustive, set of considerations that apply to orders:
(a)Setting aside interrogatories, or any interrogatory;
(b)Setting aside or removing from the court file any answers to interrogatories that have been filed;
(c)Requiring a party to answer or to give further answers to an interrogatory; and
(d)Any other order about the service or answering of interrogatories.
Rule 630(4) provides that the court must have regard to the mandatory considerations in r 632(3) before making an order under r 630(1). An order requiring a party to proceedings to give written answers to interrogatories made under r 630 is an order within the meaning of r 632(1)(d) and as a consequence, the mandatory considerations in r 632(3) would in any event apply to the making of such an order.
Rule 632(3) provides:
632Orders about interrogatories
…
(3) Before making an order under subrule (1), the court must have regard to the following matters:
(a)the principle that interrogatories in a proceeding should be limited to interrogatories that are reasonable and necessary for fairly disposing of the proceeding, or part of the proceeding, or for saving costs;
(b)the likely relevance and significance, in relation to the proceeding, of interrogatories, or particular interrogatories, and the answers;
(c)the likely time, cost and inconvenience of answering interrogatories or particular interrogatories.
Unlike the situation in some other jurisdictions there are no separate criteria applying to an order granting leave to administer interrogatories, such as special reasons considerations. A helpful summary of the application of similar criteria in other jurisdictions is contained in the decision of McCallum CJ in Mitchell v Australian Capital Territory [2023] ACTSC 239 (Mitchell), commencing at [8].
In the ACT, the court is directed to have regard to but is not limited by the mandatory considerations. In terms of any other considerations it must be guided by the main purpose of civil procedure provisions as set out in s 5A of the Court Procedures Act 2004 (ACT); that is, the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. With reference to the rules as they relate to interrogatories, it is necessary to ensure that they are interpreted and applied in a way that best promotes those purposes.
Rule 631 deals with objections raised by a party required to answer an interrogatory. An objection must be on one or more of the following grounds:
631Objections to answer interrogatories
(1) An objection by a party to answer an interrogatory must be on 1 or more of the following grounds:
(a)the interrogatory is unnecessary;
(b)the interrogatory is oppressive, scandalous, vexatious or otherwise improper;
(c)the interrogatory is unnecessarily long, wordy or uncertain;
(d)the interrogatory is irrelevant, is of a ‘fishing’ nature or inquires into a matter of evidence;
(e)the party is privileged under the Evidence Act, part 3.10 (Privileges) from answering the interrogatory;
(f)the answer would disclose (completely or partly) the contents of a document privileged from production by the party;
(g)it is contrary to the public interest to disclose a matter that the answer would disclose;
(h)a ground arising under a provision of a territory law or a law of the Commonwealth, if the ground, the law and the provision are stated in the objection.
Operation of interrogatory rules
The process that is envisaged by the rules as it relates to the administration of interrogatories therefore allows for two scenarios.
The first scenario arises when the court is called upon to assess whether an order for the administration of interrogatories should be made. In making that assessment, the court has the benefit of the proposed interrogatories, and must apply the mandatory considerations and any other considerations that appear relevant in the particular case, guided always by the need to facilitate the just resolution of the real issues in the matter quickly, inexpensively, and efficiently.
A question arises as to the significance that attaches to the form of interrogatories required to be filed as part of the application process, and whether that form of words should be binding for the purposes of determining the application. In Mitchell, McCallum CJ took the view that there was, consistent with the rule, no barrier to the court intervening, in an appropriate case, to the extent of indicating the form of interrogatory that could be administered: see Mitchell at [28]. That is entirely consistent with the wording of r 632(3)(b) that speaks of the likely relevance and significance of “interrogatories, or particular interrogatories”.
In my view, the court may in an appropriate case, and having had due regard to the mandatory considerations, make an order for the administration of interrogatories in the form provided, or make orders for the administration of interrogatories in a modified form, with questions prescribed or otherwise. The court’s retention of the power in r 632(1)(a) to set aside interrogatories on a ground mentioned in r 631(1) supports the proposition that the introduction of the modified form of r 630 was not intended to require a level of oversight from the court that involved the settling of the particular wording of the interrogatories to be administered in every case. If that were so, there would be no circumstances in which a court may have cause to set aside the interrogatory as unnecessary, having already determined that the administration of the interrogatory was reasonable and necessary in accordance with r 632(3)(a).
The second scenario occurs in circumstances where the court has made orders for administration of interrogatories and the receiving party objects to answering an interrogatory on one or more of the grounds contained in r 631. In that event, the receiving party may, by application in proceeding, object to answering an interrogatory, and the court is empowered to deal with such objection pursuant to r 632(1). Again, the mandatory considerations in r 632(3) must be applied.
In the submissions of the defendant on the hearing of the application before me there was some conflation of the two scenarios provided for in the CPR.
Should an order be made pursuant to r 630?
Before turning to the proposed form of interrogatories filed with this application it is necessary to consider whether, in the broader sense, this is an appropriate matter in which to administer interrogatories, having regard to the mandatory considerations. The essence of the plaintiff’s complaint is that the bariatric procedure she underwent at the hands of the defendant was contraindicated and, even if it was indicated, it should have been delayed.
The plaintiff’s medical case.
The plaintiff relies upon two reports of Dr Adam Skidmore, a general, upper gastrointestinal and bariatric surgeon, dated 13 March 2024 and 21 July 2025. In his first report Dr Skidmore described the procedure that the plaintiff underwent at the hands of the defendant as “a highly complex bariatric procedure and is one of the hardest revisional procedures that can be undertaken by a Bariatric Surgeon”. As to the appropriateness of moving to a surgical solution quickly, Dr Skidmore opined that there should have been some form of imaging such as barium swallow or a CT fizzogram scan to better identify whether there was a relevant obstruction causing the plaintiff’s vomiting. He went on to describe alternative procedures that were available to deal with a patient who is vomiting and potentially malnourished. Dr Skidmore considered that a multidisciplinary team should have been involved. Given the complex presentation, prior to considering revisional surgery, at the very minimum there should have been an assessment by a psychologist or psychiatrist.
He concluded that the preoperative assessment process was not sufficiently comprehensive. In that regard, he concluded that the plaintiff’s treatment fell below the standard expected of a reasonable surgeon.
The second report of Dr Skidmore was partly responsive to the defendant’s expert medical case in that:
(a)He disagreed with Dr Garett Smith that the plaintiff ultimately required a gastric bypass. He disagreed that stomal outlet stenosis was established in her case, being the assumed state that Dr Smith relied upon to conclude that gastric bypass surgery was an inevitability; and
(b)He disagreed with the opinion of Dr Saurabh Gupta on a similar basis, noting Dr Gupta’s assumption that the plaintiff had verified obstruction.
Dr Skidmore went on to explain why he held the view that there had been insufficient pre-surgical investigation to establish that the plaintiff in fact had an obstruction, and that without a definitive diagnosis in that regard gastric bypass surgery was not warranted. He also gave a more detailed opinion regarding alternative procedures that were available.
Dr Skidmore expressed the view that all of the complications suffered by the plaintiff would have been avoided if the RYGB procedure did not take place, and confirmed the view he had expressed in his previous report that there was no urgent need to proceed with an RYGB. On the final page of his report, in response to a specific question about consent, he expressed the view that there was no evidence of adequate informed consent having occurred.
The defendant’s medical case
Dr Garett Smith is a general, upper gastrointestinal and bariatric surgeon specialising in oesophagogastric surgery. He expressed the view that symptoms of vomiting would, in his practice, usually indicate an impediment to the passage of gastric contents into the duodenum and small intestine. He noted that such symptoms were not uncommon in patients who had previously undergone a VBG procedure, as the plaintiff had. He expressed the view that a patient suffering significant foregut dysfunction in the presence of a previous VBG was likely to be suffering dysfunction related to the previous surgery rather than binge eating or an eating disorder. He considered the gastroscopy findings to likely indicate long-term complications related to the previous VBG. In those circumstances, the two operative options that were presented to the plaintiff were, in his view, reasonable and the rationale for the decision to proceed with an RYGB was also a reasonable one. Dr Smith disagreed that input from a psychiatrist or psychologist was warranted. He also expressed the view that further investigations of the type recommended by Dr Skidmore would not have changed the decision to offer surgery.
As to causation, Dr Smith did not accept that all of the symptoms now complained of could be related to complications of RYGB surgery, citing in particular the plaintiff’s dyspnoea and inability to exercise.
Ultimately, he disagreed with the opinion expressed by Dr Skidmore that the care provided by the defendant fell below the requisite standard.
Dr Saurabh Gupta is a consultant physician and interventional gastroenterologist. He expressed the view that the most likely cause of the plaintiff’s persistent nausea and vomiting was complications from the previous VBG surgery. He did not consider the symptoms to raise suspicion of an underlying eating disorder, even noting the prior history of anxiety and depression. Dr Gupta agreed with Dr Smith that the gastroscopy findings in concert with the symptom complex complained of were consistent with foregut dysfunction most likely induced by her prior VBG.
Dr Gupta expressed the view that constant vomiting in a patient was a symptom requiring early medical attention and noted that such complications rarely resolve spontaneously without definitive intervention. The doctor went on to express opinions related to causation issues that did not bear on the determination of the present application.
In addition, the defendant relies upon the opinion of a psychiatrist specialising in the treatment of eating disorders, Dr Bhaswati Bhattacharyya. Her opinion was primarily directed to the question of whether the available medical records were suggestive of a diagnosis of eating disorder or binge eating. Her conclusion was that they were not.
Consideration
It is evident from a review of the expert medical evidence relied upon by the parties that findings in relation to both the symptomatic complaints of the plaintiff from time to time to her treatment providers, including the defendant, and the symptoms in fact observed by the defendant, will be fairly critical in the trial court’s analysis of the expert opinions. Whether that symptomatic presentation, in concert with the findings of the diagnostic studies performed, was sufficient to ground a recommendation for surgery, and the subsequent performance of surgery at the time it was performed, are matters of critical significance. Those are issues that are clearly raised by the present form of pleading. I am therefore satisfied that interrogatories directed to those issues would meet the requirements of r 632(3) in that they are:
(a)Reasonable and necessary for fairly disposing of the proceeding, or part of the proceeding, or for saving costs;
(b)Likely to be relevant to the determination of critical issues in the proceedings; and
(c)Unlikely to involve undue cost and inconvenience in the procuring of answers.
Having reached that view, the requirements of r 630 are met. That does not, however, lead me to conclude that all of the interrogatories in their present form are reasonable and necessary. As the defendant has identified, some of the proposed interrogatories would clearly expose the plaintiff to an objection on one or more of the grounds set out in r 631. In my view that is concerned with the second scenario
The question for the Court, having reached the view that this is an appropriate matter in which to allow some interrogation, is whether it should, and if so to what extent, intervene to re-draft some or all of the questions. I do not consider that level of intervention is called for. I have indicated the subject matter that I consider appropriate for interrogation. It will now be a matter for the plaintiff to craft appropriate interrogatories directed to addressing the identified issues and without offending the requirements of r 631.
In relation to costs, the plaintiff had an opportunity to present a form of interrogatories that would have been acceptable to the Court, permitting precise orders as to their form. That has not occurred and the plaintiff’s success on her application is therefore of a limited nature. It is appropriate that there be no order as to the costs of the application.
Orders
The orders that I make are:
(1)The plaintiff is to administer interrogatories for the examination of the defendant within 14 days, limited to the issues of:
(a)The symptomatic presentation of the plaintiff;
(b)The findings and interpretation of the diagnostic studies performed on the plaintiff, as they relate to the recommendation for surgery; and
(c)The timing of the performance of the surgery.
(2)The defendant is to give written answers to interrogatories within a further period of 28 days.
(3)Any application seeking to set aside interrogatories or any interrogatory is to be filed within the period identified in Order 2.
(4)There is no order as to the costs of and incidental to the application.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: |
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