Eastbury v Genea Limited (Formerly Sydney IVF Limited)

[2017] NSWSC 1289

Supreme Court

New South Wales

Medium Neutral Citation:	Eastbury v Genea Limited (Formerly Sydney IVF Limited) [2017] NSWSC 1289
Hearing dates:	21 September 2017
Date of orders:	21 September 2017
Decision date:	21 September 2017
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1)   The Notice of Motion filed 14 September 2017 is dismissed.  (2)   The second defendant to pay the first defendant’s costs of the motion.
Catchwords:	EVIDENCE – application for ruling on admissibility in advance of trial – expert’s report – whether appropriate to make ruling – application dismissed
Legislation Cited:	Evidence Act 1995 (NSW), s 192A
Category:	Procedural and other rulings
Parties:	Leighee Eastbury (First Plaintiff) Phillip Eastbury (Second Plaintiff) Genea Limited (formerly known as Sydney IVF Limited) (First Defendant/Respondent) Dr Ranjana Curtotti (Second Defendant/Applicant)
Representation:	Counsel: D Lloyd (First Defendant/Respondent) T Hackett (Second Defendant/Applicant)   Solicitors: Kennedys (First Defendant/Respondent) Avant Law Pty Ltd (Second Defendant/Applicant)
File Number(s):	2014/74655

EX TEMPORE Judgment

1. On 14 September 2017, the second defendant, Dr Ranjana Curtotti, filed a notice of motion seeking a ruling under s 192A of the Evidence Act 1995 concerning the admissibility and use of a report of Mr Purvis-Smith dated 11 August 2017 in advance of the trial.

2. Mr Purvis-Smith’s report was served on behalf of the first defendant, Genea Ltd (formerly known as Sydney IVF Ltd) (“Genea”).

3. Section 192A of the Evidence Act empowers the Court to give a ruling or make a finding in relation to a question concerning the admissibility or use of evidence or the operation of a provision of the Evidence Act “before the evidence is adduced in the proceedings” but only “if [the Court] considers it to be appropriate to do so”.

4. The first question that has arisen in relation to Dr Curtotti’s notice of motion is whether it is appropriate to give such a ruling in advance of the trial of the proceedings which are listed to commence on 13 November 2017.

5. The plaintiffs in the proceedings are the parents of two children who suffered from a genetic condition known as Fragile X Syndrome since their birth. They bring the proceedings against Dr Curtotti in respect of a consultation and pathology referral that took place in May 1999. They bring the proceedings against Genea in respect of the testing of a blood sample for Fragile X that was undertaken later that year.

6. The plaintiffs claim for nervous shock and also claim under s 71(2) of the Civil Liability Act2002 for recovery of costs associated with the rearing and maintaining of the children who are said to have suffered from a disability.

7. The second defendant’s submissions identify the issues that arise in the proceedings as including the nature of the testing that was requested by Dr Curtotti and a non-party, Macquarie Pathology, of Genea and the testing performed by Genea. They also state that the “appropriate modality of testing” is in issue. It appears that a significant part of Genea’s case is a dispute about exactly what is expected of a testing laboratory in the circumstances that transpired.

8. The report of Mr Purvis-Smith that is objected to consists of 26 substantive paragraphs. On the application, counsel for the second defendant provided a copy of the report with the objected to portions identified. The essence of the objection to the report is said to be that, at various points, Mr Purvis-Smith travels beyond his expertise, which concerns genetic testing, and instead opines about the proper standards expected of a general practitioner in Dr Curtotti’s circumstances.

9. The second defendant contends that it is necessary to obtain a ruling on these portions of the report in advance of the trial in order to facilitate the overriding purpose set out in s 56 of the Civil Procedure Act. In particular, it is submitted that the objected to portions would appear to require a response from someone with expertise in relation to the conduct of general practitioners and might otherwise threaten the arrangements for expert conclaves that are due to take place between now and the trial. It is contended that an advance ruling on this would have the “...double benefit of narrowing the issues for expert conclaves and concurrent expert evidence and focusing the marshalling of evidence in reply to Mr Purvis-Smith to the real issues in dispute”.

10. Counsel for Genea, Mr Lloyd, submits that the Court should not embark upon a substantive consideration of the admissibility of the objected to portions of Mr Purvis-Smith's report. He submits that it is "not appropriate to do so" in the absence of the Court having heard detailed openings, considered the lay evidence and the balance of the expert evidence. He submits that, in substance, no real prejudice is occasioned to the second defendant, that is Dr Curtotti, in not obtaining a ruling at this point.

11. To address this it is necessary to say something about the objected to portions of Mr Purvis-Smith's report. In paragraph 13, Mr Purvis-Smith states as follows:

“While I have been asked specifically to provide an opinion on the question in paragraph 9, I believe the entire referral process which involves the clinical role of Dr Curtotti, the role of Macquarie Pathology and the laboratory testing by Genea must be considered, insofar as the outcome was determined by consecutive events.” (emphasis added)

12. The question in paragraph 9 that Mr Purvis-Smith was referring to was a question posed as to whether:

“In providing the report based on a referral and a blood sample provided by Macquarie Pathology suitable for cytogenetic but not molecular testing, did Genea act in a manner that, as at 1999, was widely accepted in Australia by peer professional opinion as competent professional practice?"

13. In the above extract from paragraph 13 of Mr Purvis-Smith's report, Dr Curtotti objects to the words "the clinical role of Dr Curtotti", which reflect the overall contention that Mr Purvis-Smith has travelled beyond his area of expertise in opining about Dr Curtotti's role.

14. Later in paragraphs 24 and 25 of Mr Purvis-Smith's reports he states as follows:

“24   In my experience, responsibility for initiation, management and interpretation of laboratory diagnostic testing is taken within a clinical context by a patient's GP/consultant. It is the role of the pathology provider such as Macquarie Pathology to ensure that the clinician's request is appropriately carried out either internally or by outsourcing to a specialist laboratory.

25   Neither Dr Curtotti nor Macquarie Pathology requested the correct test to determine whether [the plaintiff] was a carrier of the FMR1 mutation. The Genea cytogenetics laboratory was asked to perform a chromosomal examination for Fragile X and reported a normal result – 'no abnormalities detected'. Neither Dr Curtotti nor Macquarie Pathology appear to have questioned this finding, nor sought further opinion from a clinical genetics service.” (emphasis added)

15. In this extract, Dr Curtotti objects to the first sentence of paragraph 24, the references to "neither Dr Curtotti" in paragraph 25 and the words "nor sought further opinion from a clinical genetics service". At first look these aspects of Mr Purvis-Smith's report do opine upon the appropriateness or otherwise of Dr Curtotti's role. However, they must be seen in the context of paragraph 13 of his report in which Mr Purvis-Smith sought to identify the role of Genea in the "entire referral process". These passages could be seen as a statement of what at least a testing laboratory understood was the role of the referring GP, as well as the role of entities such as Macquarie Pathology.

16. Mr Lloyd sought to defend these parts of the report by, in effect, saying that it is highly relevant for Mr Purvis-Smith to give evidence as to what a testing agency such as Genea reasonably understood was the role of the referring clinician and any other referring entity. Mr Lloyd also submitted that Mr Purvis-Smith's references to the role of Dr Curtotti could also be supported because, as an experienced receiver of referrals from general practitioners, he is familiar with the range and type of requests they make.

17. The significance of recounting these aspects of the report and Mr Lloyd's submission is that, in my view, they bring home the inappropriateness of this Court embarking, in advance of the trial, on a determination of the admissibility of the objected to portions of the report. It can be accepted that Mr Purvis-Smith is not in a position to opine generally on the standards of general practitioners. However, it is a much more subtle question as to whether he can opine upon what one part of a referral system, namely the testing agency, understood was the role of another part of that system, namely, the general practitioner.

18. This morning orders were made for the further progress of the proceedings which included allowing Dr Curtotti time to obtain a report which responds to that of Mr Purvis-Smith. Further, the orders included provision for a conclave involving Mr Purvis-Smith and other persons said to be clinical geneticists and scientists. In my view, there does not seem to be any real difficulty in having the person responding to his report and the other participants in the conclave respond to Dr Purvis-Smith's opinions concerning the "entire referral process" and in particular, what a testing agency would understand was the role of Dr Curtotti.

19. In that sense, I do not see that any particular difficulty for Dr Curtotti will flow from declining to make a ruling on the admissibility of the objected to portions of the report at this stage. On the other hand, I can see the potential for an adverse effect on the administration of justice if I was to do so, given that it is unlikely I will be the trial judge and I do not have the benefit of openings, lay evidence and hearing the expert evidence. Otherwise, nothing in this judgment can be taken to be any indication of any particular view as to the admissibility of any of the objected to portions of Mr Purvis-Smith's report.

20. Accordingly, for these reasons, I will dismiss the notice of motion filed 14 September 2017 and I so order.

[Parties addressed on, inter alia, costs]

21. The first defendant having been successful, I order the second defendant to pay the first defendant's costs of the motion.

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Decision last updated: 26 September 2017