Elsing v Croft - [2021] WADC 121

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   ELSING -v- CROFT [2021] WADC 121
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   2 DECEMBER 2021
DELIVERED          :   16 DECEMBER 2021
FILE NO/S:   CIV 3217 of 2017
BETWEEN:   MARK ELSING
Plaintiff
AND
GLENN CARLTON CROFT
NALINI NAYAR
Defendants

Catchwords:

Practice and procedure - Application for further and better answers to interrogatories - Turns on its own facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr J R Johnson
Defendants	:	Mr M L Williams

Solicitors:

Plaintiff	:	Julian Johnson Lawyers
Defendants	:	Minter Ellison

Case(s) referred to in decision(s):

Barbarian Motor Cycle Club Inc v Koithan (1984) 35 SASR 481
Deputy Commissioner of Taxation for the Commonwealth of Australia v Robinswood Pty Ltd [No 4] [2003] WASC 76

DEPUTY REGISTRAR HEWITT:

In this matter the plaintiff sues the second defendant amongst others for medical negligence. The basis of the alleged negligence is firstly that in a series of appointments between the plaintiff and the second defendant in March 2013 the second defendant failed to impress upon the plaintiff the serious risk which he was carrying coming from his high blood pressure and cholesterol levels. Secondarily it is alleged the second defendant was negligent in failing to ensure that the plaintiff attended for follow-up reviews after some further blood tests had been undertaken. It is pleaded that following the last of the attendances by the plaintiff he was advised to undergo further blood tests and then to return to see her in a week. The plaintiff did not reattend and ultimately had a stroke in September 2014.
The application which is before me for determination involves the administration by the plaintiff of a number of interrogatories to the second defendant which the second defendant has objected to answer or has only answered partially. The plaintiff seeks what the plaintiff regards as proper answers to the interrogatories I have described.
The parties appear to me to be largely in agreement as to the appropriate principles which should be applied and the difference between them arises as to whether those principles are applicable to the facts in the present matter. A good description of the overall principles is contained in the case Barbarian Motor Cycle Club Inc v Koithan,[1] a decision of the Supreme Court of South Australia, which is to the following effect:
Interrogatories are a species of pre-trial discovery of facts. Their function is to enable a party to obtain from the opposite party admissions or evidence of material facts to be adduced at the trial or to appraise the strength or weakness of the case before the trial and thereby to assist in the fair disposal of the proceedings at or before the trial or in saving costs: Halsbury's Laws of England, 4^th edition, vol. 13, p. 80. Interrogatories must, of course, be relevant and, moreover, they must, as the rule indicates, be 'sufficiently material' at the pre-trial stage at which they are administered. The rule shows that they must also be necessary.
The application of these tests clearly involves a consideration degree of discretionary judgment on the part of the Court: Tiver v. Tiver and Tiverina Park Pty. Ltd., per Walters J. at p. 47. On ordinary principles a fact is relevant, not only if it is a fact in issue in the proceedings, but if it is a fact the existence or non-existence of which tends to prove or disprove a fact in issue. That this test of relevance applies to interrogatories as well as to questions at trial is shown by a passage from the judgment of Lord Esher M.R. in Marriott v. Chamberlain …
(footnotes omitted)
[1] Barbarian Motor Cycle Club Inc v Koithan (1984) 35 SASR 481, 483 and 484.
Those principles have received the approval of our Supreme Court in the decision of Justice Wheeler in Deputy Commissioner of Taxation for the Commonwealth of Australia v Robinswood Pty Ltd [No 4].[2]Broadly speaking her Honour accepted as an accurate statement of the law the principles which were set out in the BarbarianMotor Cycle Club Inc v Koithan case.
[2] Deputy Commissioner of Taxation for the Commonwealth of Australia v Robinswood Pty Ltd [No 4] [2003] WASC 76 [2].
I now move from the consideration of the general law to the particular interrogatories which are the subject of the present application of which the following were pursued at the hearing.
The first interrogatory is interrogatory 2 together with the related interrogatory 4, both of which and the answers to those interrogatories, are reproduced below:
Question
2.Did you receive training or instruction how to use of [sic] the Monet system prior to March 2013? If so, state as to all such training or instruction:
(a) when it took place;
(b) where it took place;
(c) by whom it took place;
(d) did such training or instruction, include training/ instruction in such system's use to arrange the recall of patients?
(e) if the answer to interrogatory 2(d) is 'yes' then state what was the substance of such training or instruction, as to:
(i) how you should use such system to arrange a patient's recall?
(ii) when (in what clinical situation(s) such system should be used to arrange such a patient recall)?
Answer
2.Other than to say that, as at March 2013:
(a) I knew that the Monet system used at Southern Clinic had a facility whereby I could request that a patient be recalled on a date of my choosing if I considered it necessary for the patient to be recalled on that date;
(b) I had not received any training or instructions at Southern Clinic regarding the clinical situations in which I should consider it necessary to use the Monet system to arrange a patient recall;
I object to answering this question on the basis that it does not relate to any fact directly in issue between the plaintiff and myself and does not relate to any facts the existence or non‑existence of which is relevant to the existence or non‑existence of the facts directly in issue between the plaintiff and myself.
…
Question
4.As at March 2013, in what, if any, circumstances was it your usual practice to utilise the Monet system to arrange the recall of a patient, save in response to your receipt of a report indicating abnormal test results (blood, imaging etc)?
Answer
4.Other than to say that, as at 25 March 2013:
(a) it was not my usual practice to use the Monet system to arrange the recall of a patient recall in circumstances where:
(i) I had given a patient a prescription for antihypertensive medication and a prescription for statin medication, each with sufficient repeats to last a six-month period;
(ii) I had said to that patient words to the effect that the patient should take the medication I had prescribed at the dose and frequency I had prescribed;
(iii) I believed that the patient would take the medication I had prescribed at the dose and frequency I had prescribed;
(iv) I had given the patient a referral for a fasting blood glucose level test for investigation of possible diabetes mellitus;
(v) I believed that the plaintiff would undergo a fasting blood glucose level test;
(vi) I had said to the patient words to the effect that the patient should make an appointment to see me around one week later for the purpose of re-checking the patient's blood pressure and discussing the fasting blood glucose level test results; and
(vii) I believed that the patient would make an appointment to see me around one week later;
(b) it was not my usual practice to use the Monet system to arrange the recall of a patient recall in circumstances where:
(i) I had given a patient a prescription for antihypertensive medication and a prescription for statin medication, each with sufficient repeats to last a six-month period;
(ii) I had said to that patient words to the effect that the patient should take the medication I had prescribed at the dose and frequency I had prescribed;
(iii) I believed that the patient would take the medication I had prescribed at the dose and frequency I had prescribed;
(iv) I had given the patient a referral for a fasting blood glucose level test for investigation of possible diabetes mellitus;
(v) I believed that the plaintiff would undergo a fasting blood glucose level test;
(vi) I had said to the patient words to the effect that the patient should make an appointment to see me around one week later for further review;
(vii) I believed that the patient would make an appointment to see me around one week later for the purpose of re-checking the patient's blood pressure and discussing the fasting blood glucose level test results;
(viii) the patient underwent the fasting blood glucose level test within one week; and
(ix) the fasting blood glucose level test result was below the level necessary to confirm diabetes mellitus;
I object to answering this question on the basis that it does not relate to any fact directly in issue between the plaintiff and myself and does not relate to any facts the existence or non‑existence of which is relevant to the existence or non‑existence of the facts directly in issue between the plaintiff and myself.
(Note: (b) is largely a repetition of (a) but is included for reasons of accuracy.)
I am a little perplexed by the line which has been taken by these interrogatories because they seem to have elevated the Monet system as being an essential means of conducting recalls to clients if they are necessary. It will be seen from the answer to question 4 that the second defendant did not fail to issue a recall to the plaintiff because of lack of familiarity with the system or anything of the kind but her decision was that in the circumstances it was not necessary to do so. A decision to recall a patient at some future time does not require a software management system. A Post-it note stuck on the refrigerator, a note on a whiteboard, an entry in a diary, would all provide notice to issue a recall notice in the event that one was considered to be required. The answer in the present case was that the second defendant did not consider a recall notice was required in the circumstances of this patient. Questions therefore such as her training with the system and so forth are completely irrelevant and that being the objection taken to interrogatory 2, I uphold that objection and hold that a further answer to the interrogatory is not required. Once again, insofar as interrogatory 4 is concerned, the focus seems to be on the Monet system. The means by which a recall might have been arranged is irrelevant in the present circumstances. The issue which is of importance is whether it would have been appropriate to issue a recall and whether the second defendant was negligent in failing to do so. The Monet system is in my opinion a complete red herring and, as I have pointed out above, there are a myriad number of ways in which the need for a recall could have been brought to notice and there was no particular reason why any one of them would bring a better result than any other. If a recall was required, any of the methods I have outlined above or indeed a multitude of other methods would have served the purpose. It was objected to on the basis that it is not relevant to any fact which is in issue between the parties and I uphold that objection.
Interrogatory 13 reads as follows:
Question
13.Do you now have an actual memory of your consultations with the plaintiff on 18 March 2013 and/or 25 March 2013?
Answer
13.I object to answering this question on the basis that:
(a) it does not relate to any fact directly in issue between the plaintiff and myself;
(b) it does not relate to any facts the existence or non‑existence of which is relevant to the existence or non‑existence of the facts directly in issue between the plaintiff and myself;
(c) it does not seek admissions of fact;
(d) it is directed to evidence.
The objection was explained further in argument before me to suggest that the interrogatory in truth boiled down to an inquiry as to how the second defendant intended to prove various of the facts which are alleged in her defence. In the second defendant's submission the interrogatory is in effect a question in these terms: 'How do you intend to prove the facts which are alleged in your defence?'. In my view the question can be properly characterised in the terms proposed by the second defendant. It is not an enquiry about any relevant facts or anything else but simply an inquiry to establish what the second defendant intends to rely upon to support the allegations in her defence and is as such impermissible.
The final interrogatory which is required to be considered is question 17 which is in the following terms:
Question
17.As at 25 March 2013 how often on average would you use the Monet system to generate a patient recall in any given month?
Answer
17.I object to answering this question on the basis that it does not relate to any fact directly in issue between the plaintiff and myself and does not relate to any facts the existence or non‑existence of which is relevant to the existence or non‑existence of the facts directly in issue between the plaintiff and myself.
As I have already explained, the existence or non-existence of the Monet system and its use is completely irrelevant. The issue is whether a recall was required, whether one was given, and whether it was negligent not to give a recall and if negligent whether that negligence gave rise to damage. How the recall may have been generated simply does not matter, and for that reason I uphold the objection to the interrogatory.
In final summary, I uphold the second defendant's objections to the interrogatories and dismiss the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer
10 DECEMBER 2021