Vassilou (An Infant) BY Next Friend Tracey Louise Vassilou v Roberman - [2007] WADC 145

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: VASSILOU (AN INFANT) BY NEXT FRIEND TRACEY LOUISE VASSILOU & ANOR -v- ROBERMAN & ANOR [2007] WADC 145

CORAM: KEEN DCJ

HEARD: 8 JUNE 2007

DELIVERED : 29 AUGUST 2007

FILE NO/S: CIV 2165 of 2003

BETWEEN: ANGELIQUE VASSILOU (AN INFANT) BY NEXT FRIEND TRACEY LOUISE VASSILOU
First Plaintiff
TRACEY LOUISE VASSILOU
Second Plaintiff
AND
DAVID BRIAN ROBERMAN
First Defendant
THE MINISTER FOR HEALTH
Second Defendant

Catchwords:

Procedure - Appeals from Registrar - Hearing de novo - Whether respondent wishing to challenge orders needs to file and serve Notice of Appeal - Further and better particulars - Whether should be ordered

Legislation:

District Court Rules 2005 r 8(1)
District Court of Western Australia Act 1969

Result:

Appeal allowed in part
Respondents "cross appeal" not properly constituted

Representation:

Counsel:

First Plaintiff                :     Mr G Droppert
Second Plaintiff            :     Mr G Droppert
First Defendant             :     Mr J Ley
Second Defendant         :     No Appearance

Solicitors:

First Plaintiff                :     Clayton Utz
Second Plaintiff            :     Clayton Utz
First Defendant             :     Ilberys
Second Defendant         :     Not applicable

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

Allesch v Maunz [2000] HCA 40
Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor (2006) 33 WAR 82
Coal & Allied Operations v AIRC [2000] HCA 47
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

KEEN DCJ: The matter before me is an appeal from a decision of a Deputy Registrar delivered on 27 March 2007 in relation to a request made by the first defendant on 7 November 2006 for further and better particulars of the amended Statement of Claim dated 5 October 2006 ("the Statement of Claim").
The plaintiffs' claims herein are for damages arising out of the birth of the first plaintiff on 11 October 1997. The first defendant is a specialist obstetrician to whom the second plaintiff (the mother of the first plaintiff) was referred. The first plaintiff was delivered by the first defendant by Caesarean section.
The decision appealed from is one whereby the Deputy Registrar allowed some but not all of the requests for further particulars made by the first defendant. It is in respect of those matters where the Deputy Registrar refused to make an order for particulars that the first defendant now appeals.
The appeal by the first defendant is dated 4 April 2007 and sets out the orders appealed against, the orders sought and the grounds of appeal. Before disposing of that application it is necessary for me to deal first with a matter which arose during the course of argument.
As I have noted, the Deputy Registrar allowed some of the requests but refused others. During the course of the hearing of the first defendant's appeal it was argued on behalf of the plaintiffs that by reason of that appeal being made, the plaintiffs are now entitled to challenge the orders made by the Deputy Registrar which were in favour of the first defendant.
No notice of appeal has been filed by the plaintiffs. Put shortly, counsel for the plaintiffs argued that the first defendant had assumed that he had the right to pick and choose what aspects of the decision below were to be the subject of rehearing on the appeal. During the course of his argument he moved to aspects of the requests for particulars which had been dealt with by the Deputy Registrar in favour of the first defendant. Counsel argued that the appeal is a hearing of the application for particulars de novo and that the Court, on hearing the appeal, should revisit all of the orders that have been made whether they were for or against the appellant (in this case, the first defendant).
In respect of this issue I heard oral argument from the parties and received written submissions in respect thereof.
By the District Court Rules 2005 (the Rules) r 8(1) it is provided that a legally qualified Registrar may deal with any proceedings that a Judge may deal with in chambers other than the matters specifically set out therein. Nothing in r 8 or in the Rules generally disentitles the Registrar from dealing with an application for further and better particulars of a pleading. By s 6 of the District Court of Western Australia Act 1969 (the Act) Registrar means (inter alia) a Deputy Registrar.
A Registrar's jurisdiction pursuant to r 8 of the Rules is derived from s 88(2) of the Act which provides that rules of Court may provide for a Registrar to do such things, to transact such business, and to exercise such authority and jurisdiction as a Judge of the Court sitting in chambers may, by virtue of a statute, custom, or rule or practice of the Court, do, transact or exercise.
Rule 15 of the Rules provides for appeals from a Registrar to a Judge relevantly as follows:
"15(1)If a party is dissatisfied with the decision of a Registrar the party may appeal to a Judge.
(2)The appeal must be commenced within 10 days after the date of the decision or such longer period as the Judge or Registrar may allow.
(3)The appeal must be commenced by filing and serving a notice that –
(a)sets out the particulars of the Registrar's decision or that part of it which the appeal relates; and
(b)sets out the final orders that it is proposed the court should make on the appeal.
(4)There must be at least seven clear days between service of the notice and the date for the hearing of the appeal, unless otherwise ordered.
(5)…
(6)The appeal is to be by way of a new hearing of the matter that was before the Registrar."
Rule 16 of the Rules provides for directions for hearing of appeals and relevantly:
"16(1)Not less than 14 days after the appeal is commenced, a Registrar must summons the parties to the appeal to a directions hearing before a Registrar.
(2)At the directions hearing the Registrar may make any order or direction that in his or her opinion will or may facilitate the appeal being conducted efficiently, economically and expeditiously, including –
(a)directions as to how the material necessary to determine the appeal is to be presented; and
(b)directions setting the date, time and length of time for the hearing of the appeal.
(3)…"
It is now well established that appeals from Registrars to the Judge are by way of hearing de novo. On such a hearing the matter is heard afresh and the decision is given on the evidence presented at the first hearing unless the Court exercises its discretion to admit additional evidence; Hazart Pty Ltd v Rademaker (1993) 11 WAR 26. In such a case it is said that the application is treated as though it came before the Judge for the first time, although it is the party appealing who opens. Rule 15(6) clearly makes the appeal a hearing de novo.
In Allesch v Maunz [2000] HCA 40 at [23] the High Court noted:
"… the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas in the latter case those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was an error at first instance."
The Court went on to consider the distinction between an appeal by way of rehearing and an appeal in the strict sense but it is not necessary for me to canvass the same.
In Coal & Allied Operations v AIRC [2000] HCA 47 at [13] the High Court further considered the distinction between an appeal by way of rehearing and an appeal by way of hearing de novo. In the former the Court noted that the appeal is usually conducted by reference to the evidence given at first instance as opposed to in the latter where the matter is heard afresh and a decision is given on the evidence presented at that hearing.
As noted above, r 15 provides for an appeal "if a party is dissatisfied with a decision of a Registrar". If so, that party may appeal to a Judge. The procedure for doing so is set out in the rules as set out above. Significantly r 15(3) is prescriptive in that it provides that an appeal must be commenced by filing and serving notice (of appeal). In describing the commencement of the appeal it is axiomatic that that is an appeal by a party dissatisfied with a decision of a Registrar.
The Rule also notes, from a procedural aspect, that the notice must set out the particulars of the part of the decision to which the appeal relates and the orders that ought to be made.
Further as noted above, the Rules also provide for directions so that the appeal may be conducted efficiently, economically and expeditiously.
In the present case the plaintiffs have not filed notice of appeal in respect of that part of the decision of the Registrar that was in favour of the first defendant. The plaintiffs seek to argue against that part of the decision by way of "piggy-back" upon the appeal of the first defendant.
Notwithstanding that the appeal is a hearing de novo, it is still subject to the Rules which provide for the appeal to be properly constituted; that is to say, to be commenced by way of a notice of appeal complying with r 15. Absent such a notice there is no appeal on the decision of the Registrar in respect of which a party might be dissatisfied. Further, absent such a notice the provisions of r 16 providing for the conduct of the appeal are apt to be rendered nugatory.
In my opinion no appeal has effectively been commenced by the plaintiffs in respect of the decision of the Deputy Registrar and I so find. That being the case, it remains for me to deal with the appeal as commenced and prosecuted by the first defendant only.
The amended Statement of Claim (Statement of Claim) dated 5 October 2006 relevantly pleads:
"5.On 11 August 1996 the second plaintiff gave birth to a baby ('First Born') who was born at 22 weeks gestation and died shortly after.
6.The cause of the pre-term delivery of the First Born was chorioamnionitis.
7.On or about 11 September 1996 Dr Henry Simmons, general medical practitioner, referred the second plaintiff to the first defendant to discuss the circumstances of the stillbirth of the First Born and the implications for future pregnancies and the first defendant provided advice to the second plaintiff.
8.The second plaintiff fell pregnant with the first plaintiff and consulted Dr Henry Simmons.
9.On a day prior to June 1997 Dr Henry Simmons, general medical practitioner, referred the second plaintiff to the first defendant for management of the second plaintiff's pregnancy with the first defendant ('the Referral').
10.Following the Referral the first defendant treated the second plaintiff as a private patient up to and including the second plaintiff's labour with the first plaintiff, ('the Treatment Period') and at all times during the Treatment Period the first defendant was or should have been aware of the matters referred to in paragraphs 6, 7 and 8 above."
Paragraphs 11-35 of the Statement of Claim set out historical matters dealing with the examinations carried out of the second plaintiff, various tests conducted, the progress of the labour and delivery of the first plaintiff and general observations of the second plaintiff during the course of the delivery.
The Statement of Claim continues:
"36.Subsequent to discharge from the Hospital the first plaintiff has:
(a)Undergone various paediatric reviews.
(b)Been diagnosed with spastic diplegia.
37.The first plaintiff's spastic diplegia was caused by brain damage sustained due to a combination of the following factors:
(a)Chorioamnionitis suffered by the second plaintiff and/or the first plaintiff during the second plaintiff's pregnancy with the first plaintiff; and
(b)Foetal infection/inflammation; and/or
(c)Premature birth causing intraventricular haemorrhaging.
The first plaintiff's brain damage is herein after referred to as 'the Damage'.
38.The first defendant, as the medical practitioner to whom the second plaintiff was referred in about June 1997, and as the medical practitioner in charge of the management of the second plaintiff's pregnancy and labour with the first plaintiff, owed the second plaintiff and the first plaintiff a duty to exercise all reasonable skill and care in the provision of treatment and advice to the second plaintiff.
39.The Damage was caused by the first defendant's breach of his duty of care.
PARTICULARS OF BREACH OF FIRST DEFENDANT'S DUTY OF CARE
The first defendant:
(a)Failed to conduct any adequate investigations to determine if the second plaintiff and/or the first plaintiff were developing or had developed an infection such as chorioamnionitis in that the first defendant, inter alia:
(i)Failed to conduct any examination of the second plaintiff's vaginal flora during the pregnancy; and/or
(ii)Failed to conduct any appropriate blood tests such as a Full Blood Examination during the pregnancy; and/or
(iii)Failed to monitor or conduct any investigation of the second plaintiff's c‑reactive protein level; and/or
(iv)Failed to monitor the second plaintiff's temperature during the pregnancy.
(b)As a consequence of the matters referred to in subparagraph (b), failed to diagnose and/or treat the chorioamnionitis suffered by the second plaintiff and/or the first plaintiff during the pregnancy adequately or at all by the use of antiobiotics or otherwise.
(c)Failed to insert any prophylactic cervical sutures at 12‑13 weeks gestation or at all during the pregnancy with the first plaintiff as a preventative measure against the second plaintiff and/or the first plaintiff developing an infection such as chorioamnionitis.
(d)Failed to assess whether the second plaintiff was at risk of having a pre‑term delivery by monitoring the cervical length of the second plaintiff either digitally or by vaginal ultrasound during the pregnancy to detect changes in the cervix.
(e)Failed to insert any prophylactic cervical sutures at 12‑13 weeks gestation or during the pregnancy with the first plaintiff as a preventative measure against a pre‑term delivery of the first plaintiff.
(f)Failed to conduct a vaginal examination of the second plaintiff at an early stage following the Time of Admission on 11 October 1997 to determine:
(i)if any steps should be taken to suppress or slow labour; or
(ii)whether early operative intervention was required.
(g)Failed to provide any adequate or proper instructions to employees or agents of the Hospital during the period from the Time of Admission to 1810 hours on 11 October 1997 with respect to the examination of the first plaintiff and second plaintiff and delivery of the first plaintiff by the second defendant."
For the purposes of this hearing I was provided, without objection, with the Internet definition of chorioamnionitis being:
"Inflammation of the chorion and the amnion, the membranes that surround the fetus. Chorioamnionitis usually is associated with a bacterial infection. This may be due to bacteria ascending from the mother's genital tract into the uterus to infect the membranes and the amniotic fluid. Chorioamnionitis is dangerous to the mother and child. It greatly increases the risk of preterm labour and, if the child survives, the risk of cerebral palsy."
As I have noted in opening, the first defendant sought further and better particulars of the amended Statement of Claim. Before coming to those particulars and in particular those the subject of this appeal, it is necessary for me to say something of the history of this matter.
An affidavit was sworn by Melissa Sonia Corp on 23 March 2007. The affidavit was in response to the first defendant's application before the Deputy Registrar for further and better particulars. In that affidavit Ms Corp annexes the substance of expert evidence of Dr William Molloy and Dr Andrew Watkins.
The substance of the evidence of Dr Molloy is dated 8 February 2007. That substance of evidence reveals in relation to the second plaintiff a past history of neonatal death thought to be associated with chorioamnionitis. The substance of expert evidence goes on to deal with the history of the second plaintiff's pregnancy with the first plaintiff and the respect in which the antenatal care was said to be deficient both as to antibiotic cover (noting the previous severe chorioamnionitis) and cervical suturing.
The substance of the expert evidence of Dr Watkins consists of a long report dated 20 February 2004. All that I need to note in relation to that report for the purposes of the present appeal is that it refers to previous losses by the second plaintiff and the reason for referral to the first defendant. The report sets out details of the birth of the first plaintiff and suggests that there is evidence of the second plaintiff suffering chorioamnionitis whilst in labour. Dr Watkins concludes that the bulk of the first plaintiff's problems are due to infectious inflammatory insult but is not so clear as to other matters in relation thereto pointing to liability.
The reasons of the Deputy Registrar for refusing the Request for Particulars, as to request number 1, were that the plaintiff was not able to identify dates of infections but that it might not be part of the plaintiff's case to identify with certainty when infection took hold. He thought that it was probably sufficient that there was infection and that adequate investigation would have identified it and remedial steps could have been taken.
The Deputy Registrar also found that many of the questions went to the manner in which it is alleged that the omission by the first defendant caused the injury. He noted that the allegation was a combination of matters leading to brain damage and he concluded that the questions were not properly framed and in particular those relating to requests 2(b), (e), (h), (j), (p) and (u). He also declined to order answers to requests 2(k), (l), (m) and (n) on the same basis as that for question 1, namely the plaintiff would not be able to specify with certainty dates when the relevant matters occurred.
As to request 2(o) he considered this to be the wrong question in the circumstances, 2(p) dealt with the cervical sutures and was adequately pleaded, questions 2(t) and 2(u) were the wrong questions and that question 2(y) and (z) suffered the same problems as question 2(b).
Request for Particulars 1 dealt with par 37 of the Statement of Claim. It raised eight separate questions dealing with the matters set out in par 37 of the Statement of Claim. Essentially the plaintiff was being asked to specify the dates between which she suffered and the first plaintiff suffered from chorioamnionitis and all the facts, matters and circumstances relied on to establish that they were so suffering between those dates. The rest of the particulars sought the dates of the alleged fetal infection and fetal inflammation in the facts relied upon to establish that.
The case for the plaintiff, as put on the appeal, was that the first defendant is entitled to know when the plaintiffs allege that these matters occured because it is only then that the first defendant can know whether tests that it did or did not do would have been effective. It is said that that temporal relationship is necessary so that the first defendant can respond. On the other hand, the plaintiff says that it is not necessary to be able to show on a particular date that an infection started nor that on a particular date the plaintiff would have been examined by the first defendant in order to make out the claim. Essentially the plaintiffs said that the case was of an undiagnosed and untreated condition during the course of the pregnancy taken against the historical background relating to the second plaintiff. The plaintiffs argued that the matter will be resolved around the manifestation of risks and the absence of any steps to minimise them. Whether the plaintiffs could establish that the infection occurred or started at any particular time was a matter of technical issues to be canvassed by experts.

I am inclined to agree. Clearly if the first defendant was able to pin the second plaintiff down as to time of infection, that may assist. However, in a case such as this it seems to me, on the information that I have been provided with, that that would not be possible. Nevertheless, against the background one would suspect that the issue will be dealt with on a more general basis by experts as to what would be the proper practice by way of treatment when dealing with a patient with the history of this patient in the circumstances of the Referral. As I have noted, this will probably be a matter for experts about which I will have more to say later in these reasons. At the moment I decline to make an order in respect of request 1 of the Request for Particulars.
Request 2(a) and (b) in the Request deal with an allegation in par 39(a)(i) of the Statement of Claim that the first defendant failed to conduct any examination of the second plaintiff's vaginal flora during the pregnancy. Again the request asks for specificity as to dates when examination should have taken place and how that failure to conduct the examination caused the plaintiffs to suffer chorioamnionitis, fetal infection and fetal inflammation or the first plaintiff to be born prematurely.
It is said by the first defendant that that information is required to link up the allegations with causation, that is to say to each of the matters pleaded in par 37 of the Statement of Claim.
It seems to me that it would be artificial to expect the plaintiff to be able to say the dates upon which the first defendant should have examined the second plaintiff's vaginal flora. It would be a matter for expert evidence as to whether, given the history of the second plaintiff and the Referral, the first defendant should have carried out such examinations, at what frequency and what consequences may flow from a failure to do so.
In the circumstances, again, I would not allow Request 2(b).
It was conceded by counsel for the first defendant that the request at 2(e) and (h) would stand or fall on how the first defendant faired on Request 2(b). Accordingly, I disallow request 2(e) and (h).
Request 2(j) deals with the allegation that the first defendant failed to monitor the second plaintiff's temperature during the pregnancy. The learned Registrar had allowed a request at 2(i) which asked the plaintiffs to specify the dates on which it is alleged the first defendant should have monitored the second plaintiff's temperature. The request at 2(j) asks how it is alleged the first defendant's alleged failure to monitor the second plaintiff's temperature on any of the dates caused the first and second plaintiff to suffer chorioamnionitis, fetal infection and fetal inflammation or the plaintiff to be born prematurely.
The first defendant argues that the first defendant is entitled to know how it is said that that failure caused those matters referred to. Notwithstanding that the Deputy Registrar had allowed the request in 2(i) as to the dates, counsel for the first defendant accepted in argument that request 2(j) follows the same kind of argument as in request 2(b), (e) and (h). In the circumstances I again decline to make an order in respect of request 2(j).
Requests 2(k), (l), (m) and (n) relate to the allegation in par 39(b) of the Statement of Claim that the first defendant failed to diagnosis and/or treat the chorioamnionitis suffered by the second plaintiff and/or the first plaintiff during the pregnancy adequately or at all by the use of antiobiotics or otherwise. The request requires the plaintiffs to specify the dates between which they each suffered from chorioamnionitis and the facts relied upon to establish the same.
Again it seems to me that this request falls into the same category as that in 2(b). It would be artificial for the plaintiffs to attempt to answer this question. It is directly linked to the damage as alleged in par 37 of the Statement of Claim caused by a combination of factors, including chorioamnionitis during the course of the pregnancy. It is also linked to the allegation in par 39(a) of the Statement of Claim of the failure to conduct investigations to determine if the plaintiffs were developing or had developed an infection such as chorioamnionitis.
It is put by the first defendant that the first defendant cannot know which chorioamnionitis is being referred to in par 39(b) of the Statement of Claim. It is said that whereas in par 39(a) of the Statement of Claim the expression "such as chorioamnionitis" is used, in 39(b) of the Statement of Claim the definite article is used in relation to that infection. The first defendant says that it does not know which chorioamnionitis it is alleged to have failed to detect.
Again it seems to me that whether or not the plaintiffs had developed chorioamnionitis prior to admission to Hospital will be a matter that will be fleshed out in evidence. Whether testing for that should have occurred at an earlier date and what the consequences of so doing or not doing would have been will also be a matter for expert evidence. Even though the terminology "such as" and "the" chorioamnionitis is used, it seems to me that it is fair to assume that one is talking about the same event.
In the circumstances I again refuse to order answers to requests 2(k), (l), (m) and (n).
The next request is 2(p) which arises out of the allegation in the Statement of Claim at par 39(e) that the first defendant failed to insert any prophylactic cervical sutures … as a preventative measure against the second plaintiff and/or the first plaintiff developing an infection such as chorioamnionitis. The question that is raised is how that failure caused each of them to develop chorioamnionitis.
It was put by counsel for the first defendant that the plaintiffs were saying "If you put a stitch in the cervix at 12 or 13 weeks gestation or at some stage during pregnancy, that would have prevented the infection developing". He then asked the question "Well, how would it do that? What is the basis for that allegation?" Counsel for the plaintiffs argued that it has a dual function; that it will prevent this type of infection and also be a preventative measure against pre-term delivery of the baby.
It seems to me that, this request, is one that is clearly covered by expert evidence and I decline to order that it be answered.
The next request arises out of the allegation at par 39(f) of the Statement of Claim that the first defendant failed to conduct a vaginal examination of the second plaintiff "at an early stage following the time of admission on 11 October 1997". The request asks the plaintiffs to specify the time of the day at which it is alleged the first defendant should have performed a vaginal examination.
The argument in relation to this seem to come back to the pleading that the time of admission was 9.36 am.
During the course of argument counsel for the plaintiff conceded that the expression "at an early stage" was somewhat vague. However, he was hesitant to accept that the plaintiff should be tied down, other than to say that early on after her admission there should have been an examination.
It does seem to me that the first defendant is entitled to know what is being put against him in this respect. The pleading is vague as to when the vaginal examination on this critical day should have taken place and I order that the plaintiffs do answer request 2(t).
Request 2(u) follows on from 2(t) to the extent of asking how the failure to conduct the vaginal examination at an early stage caused the first plaintiff to be born prematurely which ties back to par 37(c) of the Statement of Claim. It seems to me that once request 2(t) is answered 2(u) becomes a matter for expert evidence in the light of the known evidence of the Hospital notes and the like on the day in question. Accordingly, I decline to order request 2(u) to be answered.
The last two requests, namely 2(y) and 2(z) can be dealt with together. The Statement of Claim alleges at par 39(g) that the first defendant's failure to provide any adequate or proper instructions to employees or agents of the Hospital during the period from the time of admission with respect to the examination of the first plaintiff and the second plaintiff and delivery of the first plaintiff by the second defendant. The requests ask for particulars as to how the alleged failure to provide adequate and proper instructions, (as to request 2(y)) in respect of the examination of the plaintiffs caused the second and first plaintiffs to suffer chorioamnionitis, fetal infection and fetal inflammation and for the first plaintiff to be born prematurely and (in relation to request 2(z)) how that failure, with respect to the delivery of the first plaintiff caused the same things to occur.
The first defendant says that the question was designed to ascertain how that failure could lead to those matters. Counsel asks what is it about the instructions that would have prevented the child being born prematurely?
When dealing with the request, the Deputy Registrar allowed a modified form of the request under request 2(x), essentially for the plaintiffs to provide particulars of what the inadequate or improper instructions it is alleged the first defendant gave to employees etcetera. It seems to me that once that question is answered, then that will give rise to expert evidence as to matters referred to in the requests at 2(y) and 2(z).
Accordingly, I decline to order the plaintiffs to answer requests 2(y) and 2(z).
I have noted above that much of the controversy in relation to particulars is a matter to be dealt with by way of expert evidence. That is frequently the case in cases such as the present. They are very much driven by the contemporary notes and expert evidence.
In Barclay MowlemConstruction Ltdv Dampier Port Authority & Anor (2006) 33 WAR 82 Martin CJ dealt with what he described as the "contemporary purpose of pleadings". His Honour said:
"5.In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre‑trial directions. In this Court, those pre‑trial directions will almost invariably include; first, a direction for the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial; second, the exchange well prior to trial of non-expert witness statements so that non‑expert witnesses will customarily give their evidence‑in‑chief only by the adoption of that written statement; third, the exchange of expert reports well in advance of trial and a direction that those experts confer prior to trial; fourth, the exchange of chronologies; and fifth, the exchange of written submissions.
6.Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met.
7.In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.
8.Most pleadings in complex cases, and this is a complex case, can be criticised from the perspective of technical pleading rules that evolved in a very different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained."
His Honour also went on to note:
"15.It is also clear from my review of the objections that in many cases their appropriate resolution may lie in the provision of particulars of the pleading. Having made that observation; however, I would discourage the idea that particulars should be sought merely because they could be sought and I would discourage acceptance of the proposition that particulars have to be provided merely because they can be provided.
16.Particulars should be provided, in an appropriate case, where they are necessary to meet the fundamental objectives to which I have referred; that is to say, the true enunciation of the issues that are to be tried and the identification of the case that has to be met. The need to provide particulars must also be assessed in the case management environment to which I have referred; that is to say, an environment in which parties can be assured that the case will not go to trial before various orders have been made requiring the pre-trial disclosure of all the evidence that will be adduced at trial."
I have noted the way in which matters of this nature are customarily dealt with. In addition to those matters mentioned it seems to me that this is a case where trial bundles of contemporary notes and experts reports will be exchanged. There may or may not be an exchange of non‑expert statements. Certainly there will be an exchange of experts reports and possibly conferral between experts. Chronologies may also need to be prepared and detailed written submissions. In a case such as this I do not consider that the procedures that would be adopted would be too dissimilar to those which apply in the Supreme Court. Accordingly, I am of the view, notwithstanding my rulings as set out above in relation to the requests, the procedure to be adopted should follow that enunciated by His Honour the Chief Justice in circumstances where the relevant case is one that will be driven largely by expert evidence.

Conclusion

Having regard to what has been said by Martin CJ in Barclay Mowlem and my findings above that, save where specifically mentioned otherwise, I am not satisfied that the Deputy Registrar erred in the decision that he made, nor that on hearing the matter de novo I ought to come to a different conclusion.
It seems to me that the claim is pleaded with sufficient degree of specificity. It satisfies the test of setting out the issues and the case to be met by the first defendant. I am not satisfied that it would cause any real difficulties to the first defendant which could only be overcome by the provision of particulars. Any infill detail in this case ought to be able to be covered by exchange of information discovery and experts reports. I say this in a case of this nature where what occurred to the plaintiffs and why it occurred and what could have been done to prevent it are all matters of a highly technical nature to be canvassed in reports and the like rather than overburdening the pleading process by fine detail or particularisation.
Accordingly, the appeal succeeds as to request 2(t), but otherwise is dismissed.
I will hear the parties on the question of costs.