Gillett v Robinson

[2011] NSWSC 863

Supreme Court

New South Wales

Medium Neutral Citation:	Gillett v Robinson [2011] NSWSC 863
Hearing dates:	1 August 2011
Decision date:	12 August 2011
Before:	Harrison J
Decision:	Plaintiff's application to amend statement of claim and call further medical evidence from Dr Molloy dismissed
Catchwords:	PROCEDURE - amendment - application to amend statement of claim and to call further medical evidence - application made on first day of hearing - no explanation for delay - where application futile - where medical evidence not supportive of proposed new case in any event - application refused
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Category:	Procedural and other rulings
Parties:	Halina Jain Gillett (Plaintiff)
Representation:	K Connor SC and M Avenell (Plaintiff) Thomas Mitchell Solicitors (Plaintiff)
File Number(s):	2006/267258

Judgment

1. HIS HONOUR : The plaintiff has applied to amend her statement of claim and to rely upon an additional medical report in support of her case, which I heard on the first day of the hearing on 1 August 2011. I rejected the application and informed the parties that I would furnish reasons for my decision at a later date. These reasons for judgment are limited to that application.

Introduction and background

1. The plaintiff was born in October 1985. Her mother's attending obstetrician was Professor Robinson. She sustained an injury to her right shoulder during the delivery, known as Erb's palsy, which was caused by shoulder dystocia. The plaintiff alleges that her injury, and consequent disabilities, resulted from Professor Robinson's negligence or breach of duty.

1. The plaintiff commenced these proceedings in 2006. I have been unable to locate the original statement of claim. However, by a notice of motion filed on 17 April 2008 the plaintiff sought to amend the particulars of negligence against Professor Robinson so that they read as follows:

(a) Failed to take any or any proper care on the part of the plaintiff.

(b) Failed to acknowledge that there was a heightened risk of shoulder dystocia as a result of the condition of the plaintiff's mother and her prior pregnancies.

(c) Failed to perform obstetric services associated with the birth process in a proper and professional manner.

(d) Failed to exercise due care and skill in the provision of obstetric services subject of the birth process.

(e) Failed to undertake a caesarean section on the plaintiff's mother despite requests to do so.

(f) Failed to appropriately consider the plaintiff's mother's prior pregnancy and birthing concerns.

(g) Failed to provide obstetric services with any or any reasonable care.

1. Despite the extent of these proposed particulars of negligence in the second amended statement of claim annexed to the notice of motion, the final version of that document, which was filed on 19 June 2008, contained only particulars (e) and (f). They became particulars (a) and (b) in the plaintiff's statement of claim and remained in that form up to the commencement of the hearing of the action before me on 1 August 2011. However, by notice of motion filed on 28 July 2011 the plaintiff sought further to amend the pleadings by adding an additional particular of negligence as follows:

(c) Failed to provide information and advice to the plaintiff's mother as to the options for delivery of the plaintiff in light of circumstances attending the mother's three previous pregnancies and this pregnancy.

1. The plaintiff sought other relief by this latest notice of motion. Some of this was procedural, dealing with abridgement of time for service and the like, and some of it was substantive. For present purposes the important claims for relief can be reduced to the following:

4. An order under UCPR 31.28(1)(a) and UCPR 2.1 extending time nunc pro tunc for the service of the report of Dr William Molloy, obstetrician, dated 27 July 2011, so that the plaintiff's provision of a copy of the report to the defendant on 27 July 2011 was service in accordance with UCPR 31.28(1).

5. Alternatively...leave be granted to the plaintiff under UCPR 31.28(3) to tender the report of Dr Molloy and to call [him] to give evidence at the hearing despite the plaintiff's non-compliance with UCPR 31.28(1).

6. Leave be granted to the plaintiff under UCPR 31.26(5) to adduce evidence from Dr Molloy at the hearing despite the Joint Experts' Report.

7. Further, if the defendant is not able to deal with the report and evidence of Dr Molloy at the hearing on 1 to 5 August 2011, the hearing of the expert evidence be postponed to a suitable date.

1. On 22 October 2008, the Court made an order that Professor Robinson serve any liability evidence upon which he intended to rely by 24 February 2009. In accordance with that order, reports from Dr Robert Lyneham and Dr Andrew Child were served under cover of a letter from Professor Robinson's solicitors dated 20 February 2009.

1. On 9 November 2010 Registrar Bradford listed the matter for hearing commencing 1 August 2011 with an estimate of 5 days. He made a final order in accordance with the Practice Note and made an order to enable the expert evidence to be given concurrently. He directed the experts in their respective areas of expertise to confer by 30 March 2011 and to provide a joint report on such matters where they agreed and where they disagreed. He directed that lay statements of evidence be served by 28 February 2011 and that reports from the experts should issue by 22 April 2011.

1. A directions hearing took place before the Registrar on 15 February 2011. Orders were made at that time that Professor Robinson forward a list of questions for the experts to the plaintiff for consideration by 22 February 2011 and that the plaintiff advise him of her attitude to the proposed questions by 29 February 2011. A joint conference of experts was ordered to take place on 29 April 2011 and the joint experts' report was to be provided to the Court by 20 May 2011. The matter was listed for further directions on 24 May 2011.

1. Professor Robinson's solicitors prepared and forwarded a list of proposed questions to the plaintiff's solicitors, together with a proposed index of documents to be provided to them on 17 February 2011. The accompanying email contained a request that they be informed whether or not the plaintiff was happy with the questions and the list of documents.

1. The questions posed for consideration by the joint conference of experts were as follows:

1. Did Professor Robinson depart from what was widely accepted in Australia by peer professional opinion as competent professional practice in 1985, by failing to appropriately consider the plaintiff's mother's prior pregnancy and birthing concerns, namely:

(a) the birth of the plaintiff's mother's first child, who was delivered by caesarean section following failure to progress as a result of occipito posterior position; and

(b) the plaintiff's mother's third child, who was stillborn?

2. Taking into account the plaintiff's mother's prior pregnancy and birthing concerns, did Professor Robinson depart from what was widely accepted in Australia by peer professional opinion as competent practice in 1985, in proceeding to deliver the plaintiff vaginally rather than by caesarean section?

3. Assuming the plaintiff's mother had requested, at the final outpatient antenatal attendance, that a caesarean section be performed, did Professor Robinson depart from what was widely accepted in Australia by peer professional opinion as competent practice in 1985, in proceeding to deliver the plaintiff vaginally rather than by caesarean section?

4. Did Professor Robinson depart from what was widely accepted in Australia by peer professional opinion as competent professional practice in 1985, in proceeding to deliver the plaintiff vaginally rather than by caesarean section, assuming that, one or two weeks prior to the plaintiff's birth the following conversation took place:

Plaintiff's mother: "Can I have a Caesar?"

Professor Robinson: "Is this baby bigger than the others?"

Plaintiff's mother: "I don't know."

1. It would seem that, despite considerable further correspondence and telephone calls following up the 17 February 2011 request, no satisfactory or meaningful response to it was ever received by Professor Robinson's solicitors. The plaintiff's solicitor did, however, send an email dated 13 July 2011. Apart from suggesting that the joint conference was not necessary, that email listed a series of issues that were said not to be in dispute and thereafter continued with the following:

"As these issues are not in dispute, the issue of whether the defendant was in breach of his duty to the plaintiff will be solely dependant upon whether the explicit evidence of the plaintiff's mother is accepted over the defendant's usual practice evidence.

If indeed there is a finding that the request was made by the plaintiff's mother t the antenatal attendance, then there can have been no compliance by the defendant with his express evidence of duty to her as there was no further consultation and/or referral to an alternate obstetrician.

The remaining issue would then e causation as to whether the plaintiff's mother would have had a vaginal delivery if she had attended upon another obstetrician to discuss same, in any event.

Obviously, the issue of causation is clearly a matter to be determined by the Court by reference to the evidence of the plaintiff's mother, including the measures she required to be undertaken by her prior gynaecologist, whether the comfort attained by the plaintiff's mother from the defendant's response at the antenatal attendance would have been dispelled by further discussion with him and another specialist, the effect of consideration of her pregnancy issues generally by attending upon the alternate specialist, her subjective concerns being exacerbated by discussion of the birth procedure, and so on.

Accordingly, paragraphs (3) and (4) of the document entitled "Questions for Obstetric Experts: Breach of Duty" are irrelevant and completely ignore the critical issues to be determined in the proceedings.

The issue is simply whether the request was made. If the request was not made, there is no breach of duty by the defendant. If the request was made, there is a failure by the defendant to comply with the extent of his duty of care of the plaintiff's mother, by reason of his own evidence.

In relation to paragraphs 1(a) and (b) of the document entitled "Questions for Obstetric Experts: Breach of Duty", to allow the experts to proceed upon an assumption that the prior birthing concerns may be effectively considered by reference to the sparsity of details detailed therein [sic] would be of little benefit, if there was otherwise any relevance in doing so.

Also, for the experts to provide expert evidence on such an issue would involve the provision of opinion evidence on the ultimate issue to be determined by the Court, which may only potentially affect the veracity of their evidence on issues of relevance to the proceedings.

Any expert opinion as to the defendant's actual conduct, which is unknown by the defendant, would have to be in the context of having a reasonable understanding of the specific knowledge of the defendant in 1985, by reference to consultations with the plaintiff's mother, discussions with the prior obstetrician, perusal of clinical notes and so on.

As the defendant has no recollection of the plaintiff's mother or the birth of the plaintiff whatsoever, there is no method available for the experts to properly consider the knowledge of the defendant.

Again, this issue is overcome by consideration of the defendant's evidence as to usual practice if a request for a caesarean had been made.

There will be extensive costs associated with the experts undertaking the conference on 20 July 2011 with no purpose whatsoever.

We understand that there were Consent Orders entered into dated 17 May 2011 anticipating a conference being undertaken by the experts by reference to your correspondence dated 24 February 2011.

However, proper consideration of the statement of the defendant, dated 7 March 2011 and the affidavit of [the plaintiff's mother] dated 27 May 2011 resolves any necessity for any such conference to occur.

Please advise whether your client considers that the conference should be undertaken by 4.00pm on 15 July 2011.

If your client requires the expert conference to be undertaken by reference to your proposed issues, then we put you on notice that we will be objecting to any such joint report associated with same on the basis of relevance as detailed herein."

1. The joint conference of experts took place on 20 July 2011. Professor Chapman, Dr Lyneham and Dr Childs attended. They answered the questions originally proposed by Professor Robinson's solicitors. All questions were unanimously answered in the negative.

1. The following day Professor Robinson's solicitors wrote to the plaintiff's solicitors inquiring whether, in the light of the answers of the joint experts, the plaintiff intended to proceed with the action. That letter provoked a response dated 25 July 2011 that included advice that the plaintiff's solicitors were "in the process of obtaining a report from Dr William Molloy" which they understood would be available the next day. The letter also inquired whether Professor Robinson "proposes to object to the report being relied upon by [the plaintiff] for her claim generally and at the hearing on 1 August 2011." Dr Molloy's report was served on Professor Robinson's solicitors on Wednesday 27 July 2011, or two clear working days before the hearing was due to commence.

1. The plaintiff relied upon two affidavits sworn by her solicitor Nicholas Mitchell Coren dated 29 July 2011 and 31 July 2011. Mr Coren was cross-examined. At least the following matters emerged either from those affidavits in the first place or during the course of the cross-examination in the second place:

1. Mr Coren has had the conduct of these proceedings on behalf of the plaintiff since their inception.

2. Mr Coren's understanding of the case was that it was always to be what he called "a request case", meaning one in which the issue of whether or not the plaintiff's mother requested Professor Robinson to perform a caesarean section was central.

3. Professor Chapman provided reports to Mr Coren for use in the plaintiff's case dated 29 November 2006 and 12 December 2007.

4. Amendments to the statement of claim on 19 June 2008 followed advice from Mr Lawson of counsel.

5. Mr Lawson had accepted a brief to advise and appear for the plaintiff in April 2007.

6. Mr Harben SC was briefed by Mr Coren on 15 July 2010 to advise and appear at the hearing.

7. Mr Harben SC advised Mr Coren in writing on 29 July 2010 in terms that included the following:

"2. I referred in my advice to you of 28 July 2010 to the question of outstanding particulars to the defendant and in particular the instructing letters to our experts. It seems to me from what you have now told me in conference that the probability is that we have given to the defendant the statement from our client. My view is that if that is the case that is the reason they have now served the Offer of Compromise because, as I have told you in conference, the conversation which I set out on page 2 of my advice to you will not get us over the line against the defendant. You have told me that there will be other conversations and you will need to sit down with our client's mother and take a draft detailed proof of evidence from her. The downside of that is that will be subject to cross-examination in comparison to the original statement and in my view will reflect adversely on our client's mother's credibility.

*****

5. I note that I discussed with you specifically what I had set out on page 3 of my advice to you and in particular what was said by our expert in his second report. In particular we discussed the following sentence:

' If there was demonstrated to be proof that this conversation did occur, and the patient demanded that a caesarean be done, then I certainly believe that Professor Robertson (sic) should have agreed to that request. '

I note that you interpret that comment as being specifically related to the conversation set out on page 2 of my advice, whereas I interpreted it to be that Professor Chapman assumed that there was in fact, in addition to that conversation, something in the nature of a demand for a caesarean that went unanswered. I have asked you to liaise with Professor Chapman to clear that up because if the matter is litigated he will no doubt be subject to strenuous cross-examination on that part of his report. In addition it may be that he said that as a consequence of something that is written in the letter of instruction to him and I note that you will send to me all letters of instruction to our relevant experts by return."

8. Mr Harben's advice, referred to in his 29 July 2010 letter, was not produced in evidence before me.

9. Mr Harben SC wrote to Mr Coren on 24 February 2011 in the following terms:

"I refer to your letter of 24 February 2011. I thought that I made it patently clear that if the conversation set out by the defendant's solicitors and referred to in my previous Advice was the extent of the evidence from the plaintiff's mother, then the case would fail. You have assured me in a previous conference that there were sufficient requests to satisfy the requirement by our expert that a caesarean was 'demanded'. It is the full extent of that conversation or those conversations which need to be set out in detail and provided. I had thought that you were going to do that and provide that to our expert for further clarification some time ago, but it is that material which must be in the proof of evidence and about which our client's mother must give evidence.

I reiterate that if the simple conversation referred to in the document prepared by the defendant's solicitors is the extent of the evidence then the case inevitably will fail. If the joint report is requested simply on the basis of that material, the case inevitably will fail."

10.Mr Harben SC advised Mr Coren on 11 May 2011 that he could not appear at the hearing.

11. Mr Lawson returned his brief in late June 2011.

12. Mr Connor SC advised Mr Coren on 20 July 2011 that he was not prepared to accept a brief on a contingency fee basis. He also advised Mr Coren that in his opinion the particulars of negligence pleaded in the second amended statement of claim did not cover a case of negligent failure to provide information and advice concerning the respective risks and benefits of caesarean section versus vaginal delivery in the circumstances relating to the plaintiff's mother's obstetric history.

13. Mr Connor SC informed Mr Coren that he would consider taking a brief to appear on an application to amend the pleadings to raise a case of negligent advice provided evidence supporting such a case was obtained from a specialist obstetrician concerning the respective risks and benefits of caesarean section and vaginal delivery in the circumstances relating to the plaintiff's mother's obstetric history.

14. Mr Connor SC provided written confirmation of his advice to Mr Coren. Part of that written confirmation, delivered to Mr Coren at 1.00pm on 22 July 2011, is as follows:

"On 20 July I informed you of my view that the two particulars of negligence did not over a case of negligent advice: failing to inform the plaintiff's mother of the respective risk and benefits of caesarean section versus vaginal delivery in her particular circumstances. I note your belief that this kind of case was inherent in, or somehow connected with, the case concerning the plaintiff's mother's request for a caesarean section.

*****

On 21 July I was seeing Dr Molloy in conference in relation to another matter...I provided Dr Molloy with the reports of the three obstetricians, Professor Robinson's statement and later the plaintiff's mother's statement. Dr Molloy reviewed those documents for some hours. I then had a conference with Dr Molloy to ascertain what his view was. He advised me that if he had been in Professor Robinson's position he would have recommended to the plaintiff's mother that she have a caesarean section at about 37 weeks because of the risks associated with vaginal delivery in the circumstances. He was of the view that proper professional practice at the time required that the plaintiff's mother be informed of the respective risks and benefits of caesarean section versus vaginal delivery in her circumstances and the courses of action be discussed with her."

1. The present application was filed six days later.

Plaintiff's submissions

1. The plaintiff contended that in all of these circumstances she should be permitted to amend her statement of claim and to rely upon the evidence of Dr Molloy for the following reasons. First, that Professor Robinson failed to provide relevant information and advice. It was contended that what he should have appreciated from the obstetric records of the plaintiff's mother was that there was an increased risk of an obstructed delivery due to the size of the plaintiff and a history of obstructed delivery with a an earlier pregnancy. It was submitted on behalf of the plaintiff that her mother should have been provided with information and advice about the options that were available for the delivery of her baby having regard to the risks of another obstructed delivery with particular regard to the weight of the plaintiff compared to the weight of a previous foetus.

1. Secondly, the proposed additional particular of negligence was not substantially removed from a case based upon the currently identified particulars of negligence. This is a submission directed to the question of Professor Robinson's ability to meet the amendment and any questions of prejudice that may attend his doing so.

1. Thirdly, both in relation to the proposed amendment and the use of Dr Molloy's report, the plaintiff argued that it would not be in the interests of justice to deny her the opportunity to propound the new case based upon what was in effect a failure to advise her mother of the relevant options if the failure to plead it originally was not something for which she was directly responsible. Counsel for the plaintiff frankly conceded that the case had neither been properly pleaded nor prepared.

1. I was in terms taken to portions of the decision of the High Court in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, in particular at 489 as follows:

"The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors. Examination of the nature of a doctor-patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession. Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment. Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information." (Citations omitted)

1. The plaintiff's new case at its most basic would therefore appear to be that her mother was not advised, particularly in the light of her obstetric history, of the comparative risks and benefits of caesarean delivery and vaginal birth or given the opportunity to choose between them with the benefit of that advice, but that she should have been. It is therefore different to the currently pleaded case that seems to be directed at what Professor Robinson should have done safely to deliver the plaintiff, quite apart from any duty that he may have had to inform or to advise the plaintiff's mother about the comparative risks of what he intended to do to deliver the plaintiff or to seek her views about it before committing himself, and hence the plaintiff's mother, to a particular course.

Professor Robinson's submissions

1. In opposition to the plaintiff's applications Professor Robinson submitted generally that the plaintiff should not be permitted to introduce or rely upon Dr Molloy's report and that without it there was no evidence to support the application to amend, which for that reason alone would be futile and should also therefore be rejected. These general submissions were supported by a series of particular contentions as follows.

1. First, allowing either or both the amendment application or the introduction of Dr Molloy's report would have a tendency to undermine the joint expert process in general and in this case in particular. As appears above, the three experts conferred and produced a joint report following compliance with the Court's directions about it and, with the exception of the material referred to in the plaintiff's solicitor's email dated 13 July 2011 (referred to in more detail later in these reasons), the plaintiff took no step to complain about the process or the proposed questions until the answers in the joint report appeared to raise difficulties for the plaintiff's case. The plaintiff was attempting impermissibly to construct a new and different case within days of the final hearing because the joint experts' report was unfavourable. Professor Robinson relied upon the high thresholds set by UCPR 31.26 and 31.28 as follows:

31.26 Joint report arising from conference between expert witnesses

(1) This rule applies if expert witnesses prepare a joint report as referred to in rule 31.24 (1) (c).

(2) The joint report must specify matters agreed and matters not agreed and the reasons for any disagreement.

(3) The joint report may be tendered at the trial as evidence of any matters agreed.

(4) In relation to any matters not agreed, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court.

(5) Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report.

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).

1. Professor Robinson submitted that the plaintiff had not demonstrated compliance with these rules and that any leave contemplated by them should be refused.

1. Secondly, the plaintiff has failed properly or adequately either to explain or justify the delay in making the present application. The proceedings have been on foot for almost five years. She has retained counsel at various times and for various purposes. None has apparently detected the case that the plaintiff now wishes to advance prior to production of the joint experts' report. This is so notwithstanding the fact that her own expert, Professor Chapman, had indicated as long ago as his report dated 12 December 2007 that the choice of a vaginal delivery was reasonable and that there was a distinction to be made between a request for a caesarean and a demand for one. The plaintiff therefore had more than three and a half years to realise and to come to terms with the fact that the case as pleaded had no reasonable prospects of success. All of this would appear also to have been clearly and emphatically explained by senior counsel in July 2010 and twice in February 2011. There was ample opportunity to amend the case but no timely attempt to do so materialised.

1. Thirdly, the parties have known that the case has been listed for hearing since 9 November 2010. The application to change the plaintiff's case did not emerge in any form, and was not notified to Professor Robinson, until the week preceding the commencement of the hearing.

1. Fourthly, the plaintiff's application would defeat the principles of case management in a way emphasised by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [111] - [114] as follows:

"[111] An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases[176]. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.

[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

[113] In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy[177]. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

[114] Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule's objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU's application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a "just resolution" of ANU's claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU's claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided."

1. Paragraph [133] should also not be overlooked:

"[133] In relation to Queensland v J L Holdings Pty Ltd, it is sufficient to hold that, at least in jurisdictions having rules similar to rr 21 and 502, that case has ceased to be of authority. It is necessary to apply the Rules without any preconceptions derived from what was said in that case. There is a common opinion - it is far from universal, but it is common - within the judiciary and the legal profession that Queensland v J L Holdings Pty Ltd, whether it has been correctly understood or not, has had a damaging influence on the conduct of litigation. One judge who held that opinion was Bryson J. In a passage which merits preservation from the oblivion of unreported judgments, he pointed out one undesirable consequence of the way Queensland v J L Holdings Pty Ltd has been understood:

'In view of the state of the law governing allowance of amendments, amendment applications brought forward before the trial began were treated with uncomplaining supine liberality, notwithstanding that they sometimes showed that problems had been addressed years after they should have been. I do not think that the law requires the discretion to allow amendments to be exercised in entire innocence of understanding the obvious impact of forbearance and liberality on the behaviour of litigants, who have diminished incentive to do their thinking in due time and to tell the court and their opponents their full and true positions. When forbearance and liberality are extended to a delinquent the burden of inconvenience and lost opportunities for preparation tends to fall heavily and without adequate repair on parties who have not been delinquent. A relative disadvantage is imposed on those who proceed methodically and in due time; their interest in procedural justice should claim at least as much consideration as the interests of the applicant for a late amendment who does not have to look far for the creator of his difficulty. It is even conceivable that a litigant might deliberately pursue a course which will impose disadvantage on an opponent who has to reconsider his ground and change course in the midst of a contest'."

1. Fifthly, the application causes prejudice to Professor Robinson. Professor Robinson did not deal with the new issue in his statement of evidence prepared for the proceedings. The experts in joint conference and the joint report did not deal it with. A reconvening of that conference would be necessary to deal with it. The events that give rise to the proceedings are now over 26 years old. Dr Robinson has little memory for the particular events and ought not to be confronted with the need once again in a different context to attempt to revisit them so long after they occurred.

1. Sixthly, the provisions of the Civil Procedure Act 2005 and Uniform Civil Procedure Rules 2005 impose obligations upon and specify procedural and other requirements to be met by parties to litigation which the plaintiff in this case has neither complied with nor met. I was referred to Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at [36] as a summary of the factors touching the exercise of a discretion of the type I am presently asked to exercise as follows:

"[36] Sections 56, 57, 58 and 59 require a judge, exercising a discretion under UCPR r 1.12, to have regard to whether a party, seeking the exercise of the discretion in its favour, has:

(a) diligently pursued the object of disposing of the proceedings in a timely way;

(b) used, or could reasonably have used, available opportunities under the rules or otherwise, to avoid delay; and

(c) reasonably implemented the practice and procedure of the court with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination."

1. Professor Robinson contended that the plaintiff failed in her obligations in all of these respects.

1. Finally, Professor Robinson contended that the applications were futile because the plaintiff, through her solicitor, had acknowledged and conceded that she would call no further evidence. That was a matter of particular significance, according to Professor Robinson, because there is no material from the plaintiff's mother suggesting that she would have taken any different course, as for example by insisting upon or choosing to have a caesarean section to deliver the plaintiff, if the duty for which she seeks to contend had been complied with. According to Professor Robinson, the amendment could therefore not advance the plaintiff's case, as the critical issue of causation could not be established.

Consideration

1. As earlier indicated, Nicholas Mitchell Coren, the plaintiff's solicitor, swore an affidavit in support of the application on 29 July 2011, which was the Friday before the hearing commenced. He referred at paragraph 30 of that affidavit to the receipt by him of Professor Chapman's second report and the view that he (Mr Coren) then formed. That paragraph is as follows:

"30. Professor Chapman provided a second report dated 12 December 2007...Professor Chapman says in [his] second report at the foot of page 4: "If there was demonstrated to be proof that this conversation did occur and the patient demanded that a caesarean be done, then I certainly believe that Professor Robertson [sic] should have agreed to that request". Following receipt of Dr Chapman's second report, I believed that the only claim available related to the failure of Professor Robinson to consider the mother's request for a caesarean."

1. Mr Coren was cross-examined and gave the following evidence:

" KIRK : Q. Your understanding of the case as it is currently pleaded, leaving aside the proposed amendment, is that it contains two particulars of negligence, you understand that?

A. Yes, I do.

Q. The first of those two particulars in paragraph 6 (a) is that the Defendant was negligent by failing to undertake a Caesarian section on the Plaintiff's mother, despite requests to do so?

A. Yes.

Q. The second is that the Defendant failed to appropriately consider the Plaintiff's mother's prior pregnancy and birthing concerns?

A. Yes, I understand that, yes.

Q. You understand that that second particular in essence raises the issue of whether or not a Caesarian section was indicated for the treatment of the Plaintiff's mother in connection with the fourth pregnancy, the Plaintiff's pregnancy?

A. My understanding was that, yes, the relevance of the prior pregnancy as to whether or not, yes, a Caesarian was to be undertaken in considering the request, yes.

Q. So in the sense there were two elements. One, that the Defendant should have followed the request for a Caesarian section, the first particular. Two, that he was negligent by not having a Caesarian section where that was medically indicated?

A. The prior birthing concerns related to the Caesarian, because it was in the context of knowledge of the difficulties, as to the seriousness that the request should have had.

Q. Is it your understanding of the case as it currently stands that in essence those two particulars are two sides of the one coin?

A. They obviously have to be related, yes. I probably wouldn't say two sides of the one coin. I would say that the first proposition of course about the request is bolstered, if you will. Unfortunately bolstered by the prior pregnancy concerns.

HIS HONOUR

Q. Don't they in summary indicate a suggestion that the Defendant was negligent because he failed to undertake a Caesarian when he was requested to?

A. Yes.

Q. And secondly, that despite requests, he should have undertaken a Caesarian because it was medically indicated?

A. Your Honour, that's wasn't my understanding, no. My understanding was that it was always to be a request case, was my understanding of those particulars . There was to be I'm sorry. It was to be a consideration of whether or not the request was made, was my understanding of what the principal issue was . The seriousness, if you will, of the situation, being evidenced by the difficulty sustained previously." (Emphasis added)

1. It was upon that very same basis that Professor Robinson's experts proceeded thereafter to express their opinions about whether or not he had breached any alleged duty that he owed to the plaintiff or her mother and it was that basis upon which all of the experts jointly conferred. The questions drawn for their consideration and the answers that they gave were similarly based. It was not until those answers confirmed what Mr Coren had previously been advised by Mr Harben SC in July 2010 and were reaffirmed by Mr Connor SC in July 2011 that any search for a new case commenced. It was by then too late.

1. Not only was it too late for the reasons adumbrated in Professor Robinson's submissions, which I accept, but it was also probably too late in the strategic and forensic sense. This was because the plaintiff's mother's statement had by then long ago been provided to the solicitors for Professor Robinson and, to the not so faint chagrin of counsel later retained for the plaintiff, had effectively committed her to a factual position from which it would be difficult for her to resile without penalty. Moreover, her version of the conversation with Professor Robinson about whether she could have a caesarean fell short of the level of emphasis that Professor Chapman required to support his view that a caesarean should in certain circumstances have been performed. In any event, the plaintiff's mother has never proffered a different version and does not do so even now. The foundation for a case of the sort for which the plaintiff now seeks to contend has simply never materialised.

1. If that were not enough, the plaintiff's mother's affidavit goes further. Following a recitation of the conversation between her and Professor Robinson, referred to above, the plaintiff's mother continued, at paragraph 69 of her affidavit of 27 May 2011, in these terms:

"69. He [Professor Robinson] did not provide me with an opinion at that time or undertake any tests to determine if this baby was larger than my previous babies.

70. No CT scan or X-ray was undertaken on Halina to determine her size. I found this unusual as this had occurred during my pregnancy with Adam.

71. In relation to the conversation at [68] I did not pursue the matter further with Doctor Robinson because he was my doctor and he knew more about these things than me.

72. I didn't know what else to say. I had a concern and I raised it with Doctor Robinson. It was not my place to tell such an experienced doctor how to do his job.

73. I trusted Doctor Robinson to take good care of myself and my baby."

1. Whatever else may be drawn or inferred from these words, it is clear that the plaintiff's mother was not demanding, or on one view even requesting, that a caesarean section delivery be arranged and performed. The evidence from the experts does not otherwise suggest that any indications for a caesarean had arisen in the antenatal period. That included the plaintiff's mother's obstetric history and the previous vaginal delivery of a baby over 4000 grams. The circumstances for a consideration of the relative merits of a vaginal delivery and caesarean section, and the simultaneous creation of a legal obligation, in the form of a duty to advise and explain them to the plaintiff's mother, simply do not arise. The fact that Professor Chapman answered all questions posed for the joint conference of experts alike with Doctors Lyneham and Childs suggests unequivocally that he was by no later than 20 July 2011, and probably well before then, completely satisfied that it had not been, and would not be, "demonstrated [that there was] proof that [the relevant] conversation did occur and the [plaintiff's mother] demanded that a caesarean be done."

1. I consider that the application to amend and to rely upon Dr Molloy's report is futile. Even if it were not, it comes so late in the day that it is difficult to discern any redeeming basis upon which it could possibly be favourably considered. It is patently an attempt to save a case that has taken a body blow in the form of the joint experts' report. The only exceptional circumstances attending the application are that it comes on the first day of the hearing with no more than a week's notice to the other side. The latest that such an application might reasonably have been expected would be in the days and weeks immediately following the emphatic advice given by Mr Harben SC on 29 July 2010. Almost precisely twelve months elapsed with nothing emerging. There is no satisfactory explanation of why, if it was genuinely supported by the plaintiff's original instructions, the new case did not either form part of her case from the start or become the subject of an application to amend much earlier. The only apparently available answers to that question do not shed any favourable light on the plaintiff's side of the record.

1. The email from the plaintiff's solicitor dated 13 July 2011 requires some comment. It is a somewhat curious document in many respects. It is, however, clear enough that it was written with an expectation or anticipation that the joint conference of experts would produce a report that did not assist the plaintiff's case. It is also clear that Mr Coren was attempting to distance himself from its conclusions, even in advance of knowing what they were, and to prevent the conference going ahead as scheduled if he could. It was written belatedly in response to repeated attempts by Professor Robinson's solicitors over the months since February the same year to elicit his response to the proposed list of questions that had been drafted for the experts to consider.

1. The timing and content of the letter are important. Nothing that emerged after the joint conference of experts, which prompted the application to amend and call Dr Molloy, could not easily have been discovered and acted upon well before, if proper attention to it had been given when it should have been. I have been left with the very real impression that the plaintiff became the hostage of her mother's version of the conversation with Professor Robinson, so that the entire shape of the case was set from when her statement was served. The reference by senior counsel to the service of Professor Robinson's offer of compromise in his communication with Mr Coren sounded in its context a fairly clear warning about his concerns and should have provoked a review of the matter at that time. Any attempt to reconfigure the proceedings, or to amend the statement of claim, should also have been made then. As I have said, it is too late by the two or three weeks prior to commencement of the hearing to attempt to recover from the consequences of inaction for so long. Mr Coren's attack upon the utility of the experts' joint conference was in my view no more than a smokescreen. No injustice attends denying the plaintiff the opportunity to pursue a new case now.

1. Finally I note that on one view of the matter, the report of Dr Molloy does not in any event support or propound a case of the type that the proposed amendment seeks to make out. This is not an insignificant consideration. It is true that Dr Molloy appears to disagree with the views expressed by Professor Chapman and Doctors Child and Lyneham. So much emerges from the following portions of Dr Molloy's report:

"32 I do not agree with Professor Robinson's view that '...there was no reason for her to have a caesarean section on this occasion'.

33. In my opinion there were a number of considerations that individually and collectively supported recommending an elective caesarean section in this case. Indeed, in my view the considerations supporting a caesarean section outweighed the considerations favouring a further vaginal delivery (VBAC). I would have advised Ms Gillett's mother to have an elective caesarean section, that is, a caesarean section before she went into labour and sometime shortly after [the 14 October 1985] consultation.

34. Another alternative was induction of labour at 37 weeks. In this case what happened was induction of labour at 39 weeks, some two weeks later than the time I believe the baby should have been delivered. The additional two weeks is likely to have resulted in a foetal weight gain of about 500gms.

35. In any event the matter was one for discussion with the mother in the course of which the options of elective caesarean section or induction of labour or natural vaginal delivery would be addressed and the advantages and disadvantages of each course carefully explained to the mother."

1. However, these opinions are almost completely beside the point of the proposed amendment. Paragraph 35 approaches the relevant issue but is wholly unsupported or accompanied by any pertinent expression of opinion about compliance or non-compliance by Professor Robinson with any appropriate standard of care or alleged departure from what was widely accepted in Australia by peer professional opinion as competent practice in 1985. Nothing that he has said informs his position on the breach alleged in proposed paragraph 6(c). On any proper analysis, Dr Molloy is doing no more and no less that purporting to disagree with individual opinions of Dr Child and Dr Lyneham and Professor Chapman, which were framed and expressed by reference to the pleadings in their current form. His report is effectively inutile in and irrelevant to the present application. Moreover, it is in my opinion in this respect a matter of some very considerable significance, and potentially a matter reflecting most critically upon Mr Coren, that as far as Dr Molloy's report reveals, he was neither provided with, nor accordingly does he make any reference to, the joint experts' report. This is so notwithstanding the fact that Dr Molloy's report is dated 27 July 2011, or seven days after the joint conference of experts. I am only able to conclude that this was done intentionally and deliberately. Speaking as neutrally as I can in this respect I observe that Dr Molloy's report and its status as a piece of information upon which I can rely have been substantially degraded as a result of this fact. It is in any event merely one opinion which neither engages with the joint experts' opinion in terms nor one that can be considered to have been expressed with the benefit of the expert professional interplay and discussion that I am bound to conclude formed part of the joint conference on 20 July 2011.

Conclusions and orders

1. I confirm my order dismissing the plaintiff's application. I will deal with the question of the costs of the application at some time convenient to the parties and to the Court.

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Decision last updated: 12 August 2011