Supreme Court New South Wales Medium Neutral Citation: Polsen v Harrison (No. 4) [2021] NSWSC 251 Hearing dates: 17, 19, 22 & 23 February 2021 Date of orders: 24 February 2021 Decision date: 17 March 2021 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Leave to file the Second Further Amended Statement of Claim is refused. (2) The plaintiff is to pay the defendant's costs of the application. Catchwords: CIVIL PROCEDURE – personal injury proceedings – pleadings – application to file and serve a second further amended statement of claim – application seeking leave to amend pleadings on day 3 of the trial - where proposed amendments include new causes of action – whether amendments prejudicial to defendant – competing considerations of justice between parties and efficiency of judicial administration – application refused Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60, 64, 65 Uniform Civil Procedure Rules 2005 (NSW), rr 14.17, 19.1 Cases Cited: Aon Risk Services Limited v Australian National University (2009) 239 CLR 175 [2009] HCA 27 Cropper v Smith (1884) 26 Ch. D. 700 (CA) Duke Group Ltd v Arthur Young (No 2) (1991) 55 SASR 24 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Namberry Craft Pty Ltd v Watson [2011] VSC 135 Polsen v Harrison [2020] NSWSC 1168 Polsen v Harrison [2021] NSWCA 23 Polsen v Harrison (No 2) [2021] NSWSC 111 Polsen v Harrison (No 3) [2021] NSWSC 125 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 [2007] HCA 42 Sparks v Hobson [2018] NSWCA 29 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320 Category: Procedural rulings Parties: Katrina Marie Polsen (Plaintiff) Dr Harrison (Defendant) Representation: Counsel: AJ Bartley SC / JA Hillier (Plaintiff) M Windsor SC / M Hutchings (Defendant) Solicitors: Commins Hendriks (Plaintiff) HWL Ebsworth (Defendant) File Number(s): 2016/204451 Publication restriction: Nil Judgment 1. In July 2016, the plaintiff, Katrina Polsen, commenced proceedings against the defendant surgeon, Dr Harrison, arising from gastric sleeve surgery he performed at Wagga Wagga Base Hospital in July 2013. 2. On 7 August 2019, the case was set down for hearing with a 12 day estimate to commence on Monday 15 February 2021. Despite years of case management and specific assurances by counsel for the plaintiff on 23 December 2020 that the case was ready to proceed, after opening at length on the first day of trial, Ms Polsen now, on day 3 of the trial, seeks leave to file a Second Further Amended Statement of Claim. The proposed Second Further Amended Statement of Claim is appended to this judgment to illustrate the extensive nature of the amendments. 3. Dr Harrison opposed the application. 4. For the reasons that follow, I refused the plaintiff's application to amend, with costs. Background 1. To provide context for the application, it is necessary to set out some of the factual and procedural background. 2. Ms Polsen consulted Dr Harrison in May 2013 and underwent a gastric sleeve procedure performed by him on 22 July 2013. It is common ground that the procedure was to address Ms Polsen's weight management issues given her BMI of 48.5 and her associated health and life expectancy issues. 3. Ms Polsen had a very complicated and stormy post-operative course involving many subsequent procedures. She says these were caused by Dr Harrison's negligence. She alleges that she has been left significantly impaired and that she cannot work or perform household tasks and has extensive ongoing treatment needs. 4. On 6 July 2016 a Statement of Claim was filed in the District Court at Wagga Wagga seeking damages on the basis that Dr Harrison was negligent in his preoperative advice, performance of the surgery and management of post-operative complications. It also alleged that the second defendant, the local health district responsible for Wagga Wagga Base Hospital, was negligent in its management of the post-operative complications. (The second defendant was removed from the proceedings by consent judgment in its favour in mid-2019.) 5. Over the ensuing four and a half years, various case management orders were made, including transfer to the Supreme Court in June 2018. There were multiple directions hearings at which orders were made to ensure the matter was prepared in an orderly fashion and for the allocation of a hearing date at an appropriate stage of readiness. 6. I confine my further observations to the orders made in the Supreme Court after June 2018. Many timetabling orders were breached. I make that observation not to be gratuitously critical, but to highlight the long line of chances and lengthy period of time that Ms Polsen has had since the proceedings commenced, to properly prepare her evidence and a statement of claim that reflects the evidence served in the proceedings. 7. On 7 August 2019 when the Registrar allocated the 12 day hearing to commence on 15 February 2021, he ordered an extended timetable for Dr Harrison to serve liability and quantum evidence and for Ms Polsen to serve her evidence in reply. 8. In December 2019, Ms Polsen served supplementary reports from Dr Smith (surgeon), Professor Morris and Dr Miller that raised new issues that, it is common ground, had not previously been pleaded. 9. On 16 April 2020 Registrar Jones made orders that Ms Polsen was not entitled to rely on that further evidence. This was the subject of a successful application for judicial review. Associate Justice Harrison made orders on 31 August 2020 setting aside the Registrar's decision and granting leave to file and serve an Amended Statement of Claim within 14 days. 10. In that same judgment, her Honour dealt with a Notice of Motion filed by Ms Polsen on 28 May 2020 seeking leave to file an Amended Statement of Claim. Her Honour granted that leave for the reasons set out in Polsen v Harrison [2020] NSWSC 1168 at [87] to [125]. Significantly, her Honour explained her decision to permit the extensive amendments was to "allow for the real issues in dispute to be determined" and "to regularise the pleadings in conformity with (Ms Polsen's) expert evidence served in reply". 11. In [56]-[72], her Honour detailed that further evidence, which included reports of Dr Smith, Dr Michael Mar Fan, Mr Andrew Jenkinson, Dr Geoffrey Miller and Professor David Morris. 12. On 1 September 2020 the Amended Statement of Claim was filed. 13. On 10 September 2020 orders were made in respect of refresher medical evidence and expert conclaves. The liability conclave was ordered to take place by 4 December 2020. This order was not complied with. The parties were still arguing regarding what material should be before the conclaves in January 2021. 14. On 2 December 2020 the Registrar made orders extending the time for Dr Harrison to serve his Defence and expert evidence in reply to the plaintiffs Amended Statement of Claim. 15. On 10 December 2020 the parties attended a mediation which was not successful. 16. On 17 December 2020 the Registrar made further orders regarding service of evidence of the lay witnesses to be called in Dr Harrison's case. 17. On a basis that remains unclear, but seems to have been the subject of agreement between the parties, leave was granted by the Registrar on 17 December 2020 for Ms Polsen to file and serve a Further Amended Statement of Claim by 21 December 2020. It was filed on 18 December 2020 "(the December Statement of Claim"). 18. At a directions hearing that I convened on 23 December 2020 because of a concern I held that the matter did not look ready to proceed, I was assured by junior counsel for both parties that the matter was "on track". In particular I enquired as to whether there were any issues arising from the December Statement of Claim. I was advised by Mr Hutchings on behalf of Dr Harrison that there "may be some complaint about the adequacy of the response to a request for further and better particulars", but that there was "nothing the Court needed to be troubled by". 19. I was advised by Ms Hillier, junior counsel for the plaintiff, that steps to comply with the requirements of the Practice Note "were being undertaken as we speak", and it was confirmed by both Ms Hillier and Mr Hutchings that the matter would likely take 15 days and that the Court should proceed on that basis. 20. The Defence to the December Statement of Claim was filed and served on 21 January 2021, and specifically addressed the inadequacy of the pleading in par 14E of the December Statement of Claim and the failure to properly plead the risk of harm that it is alleged Dr Harrison should have taken steps to avoid. The trial 1. On 15 February 2021, Mr Bartley SC opened fulsomely for approximately four hours. That opening said nothing about any need or intention to amend the December Statement of Claim. Nothing at all was said about any need to raise new cases in trespass and battery. 2. During the opening I raised with Mr Bartley what seemed to be important matters missing from the December Statement of Claim. First, there was no pleading identifying the risk of harm as required by s 5B of the Civil Liability Act 2002 (NSW) and cases such as Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320, (per Leeming JA with whom the other members of the Court agreed) at [102], [105] to [107] and the observations of Gummow J in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 [2007] HCA 42 at [59]. I noted that par 14E of the December Statement of Claim seemed to be an attempt to identify the risk of harm, but it did not adequately do so and needed to be amended. 3. The second matter I raised was the absence of any pleading of the content of the duty of care Ms Polsen alleges was owed to her by Dr Harrison. 4. Senior counsel for Dr Harrison, Mr Windsor SC, had raised similar concerns both in the written submissions that he provided to the Court on 15 February 2021 shortly before 10:00am and in his oral submissions made later that day. He also raised an issue regarding the absence from the December Statement of Claim of any pleading of material facts such that would allow the Court, pursuant to s 5D of the Civil Liability Act, to carry out the necessary causation analyses. I was at that time not persuaded by this third point but took the view in conformity with what Mr Windsor submitted should be the case, that the hearing should not proceed until the para 14E risk of harm pleading was clarified and the asserted content of the duty of care was pleaded. 5. Mr Bartley acknowledged that there was no pleading of the content of the duty of care, describing that as an "oversight". He argued that par 14E of the December Statement of Claim was directed to addressing the risk of harm, but that he would take into account the Court's observations and the matters raised by Mr Windsor and would review and remedy those pleading gaps overnight. 6. The Court adjourned shortly before 4:00pm to reconvene the next morning at 11:00am to allow time for those identified, confined amendments to be attended to and for Dr Harrison's legal team to take instructions on those additional two paragraphs. 7. Instead, the Court was kept waiting all day until some time after 4:00pm when a proposed Second Further Amended Statement of Claim was provided which was not in proper form and which was, on any analysis, a complete re-draft of the statement of claim from beginning to end. 8. The problems and difficulties created by this document are legion. Perhaps most outstandingly, two entirely new causes of action, trespass and battery, were raised for the first time. Particulars of negligence were repleaded in a vastly expanded or in what seems to be deliberately vague fashion. The content of the duty of care was set out in par 7 but was expressed in alternatives and was so imprecise as to be meaningless. New, undefined or inconsistently defined catch phrases such as "liver dysfunction" and "relevant complications" were scattered throughout. The potential bases for liability of Dr Harrison were significantly widened. 9. On Wednesday 17 February 2021 at 10:00am I expressed my dismay at what appeared to be an opportunistic hijacking of a limited request by the Court to tidy and confine an admittedly inadequate pleading. 10. There was no Notice of Motion ready to be provided to the Court, no affidavit in support and no outline of submissions prepared. As a result of this inadequate preparation, in addition to Tuesday 16 February 2021 (day 2) being wasted, Wednesday 17 February 2021 (day 3) was also almost entirely wasted awaiting documents that should have been available when the oral application to amend was made. 11. This material was ultimately provided at 3:30pm on 16 February. 12. Argument proceeded on days three, five, six and seven of the trial, interrupted by an unsuccessful application for me to recuse myself (Polsen v Harrison (No 2) [2021] NSWSC 111) an unsuccessful application for a stay of proceedings (Polsen v Harrison (No 3) [2021] NSWSC 125), followed by an unsuccessful appeal to the Court of Appeal: Polsen v Harrison [2021] NSWCA 23. Legislation, rules and principles regarding amendment 1. The power to grant leave to amend is discretionary. Section 64 of the Civil Procedure Act 2005 (NSW) provides: 64 Amendment of documents generally (1) At any stage of proceedings, the court may order— (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. … 1. Section 65 of the Civil Procedure Act provides that amendment may include, if the Court permits, the addition of a new cause of action if it arises out of the same or substantially the same facts: 65 Amendment of originating process after expiry of limitation period (1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as— (a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or (b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969. (6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings. 1. The Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") also makes provision for amendment in rr 14.17 and 19.1: "14.17 New matter may be raised in pleading A party may plead any matter even if the matter has arisen after the commencement of the proceedings. 19.1 Amending a statement of claim (1) A plaintiff may, without leave, amend a statement of claim once within 28 days after the date on which it was filed, but, unless the court otherwise orders, may not amend it after a date has been fixed for trial. (2) If a plaintiff amends his or her statement of claim under subrule (1) after the defendant has filed a defence, the defendant may amend his or her defence at any time within 14 days after service of the amended statement of claim. (3) A plaintiff's right to make an amendment under subrule (1) is not affected by any amendment the plaintiff has made under rule 7.22." This provides a primary position that once a date has been fixed for trial, the plaintiff may not amend the statement of claim, unless the Court otherwise orders. 1. Whilst not overtly stated, the tenor of the submissions of Mr Bartley suggests that the extensive amendments he seeks have some additional support from Practice Note CL-7 titled "Final PNL Orders and Explanatory Notes": "13. Amendments to Pleadings Any amendments to the pleadings should be made not less than 2 weeks before the hearing. It is anticipated that with all witness statements and expert reports served any amendments would be to regularise the pleadings to accord with the evidence rather than to raise new allegations and defences." (Emphasis added.) 1. Leave to amend should be granted if the application is made in a timely manner and for a proper purpose: Aon Risk Services Limited v Australian National University (2009) 239 CLR 175 [2009] HCA 27 ("Aon"). 2. The proposed amendment must be proper as to both substance and form and not liable to be struck out. 3. The amendment must not cause undue prejudice to the other party in the sense of consequence of the time and manner of the amendment, rather than the merits or otherwise of the matter sought to be raised: Duke Group Ltd v Arthur Young (No 2) 1991 55 SASR 24. 4. The overriding purpose of the Civil Procedure Act 2005 (NSW), and the rules of Court (s 56), the objects of case management (s 57), as well as the dictates of justice (s 58), must all be carefully considered when deciding whether to allow the amendments sought. 5. Just, quick and cheap resolution of the real issues is not an illusory or aspirational statement. I must do what I can to make it a reality in the way I exercise my discretion in respect of this application. 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (3A) (Repealed) (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)— (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. … 1. As made clear in Aon, case management is not limited to the individual case under examination, but its wider implications for other court business must be taken into account in the decision making: 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects— (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 1. Section 58(2) of the Civil Procedure Act provides a framework of some of the mandatory and discretionary factors that I should specifically consider when determining any application under the UCPR or exercising a discretionary judgment such as whether to grant leave to amend. 58 Court to follow dictates of justice (1) In deciding— (a) whether to make any order or direction for the management of proceedings, including— (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court— (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant— (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 1. Given the stage of the proceedings, almost eight years after the surgery and four years and seven months after commencement of the proceedings, ss 59 and 60 of the Civil Procedure Act are also pertinent: 59 Elimination of delay In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. 1. The dictates of justice require weight to be given to the competing considerations of justice between the parties and the efficiency of judicial administration. As made clear in Aon at [24] and [92] to [97], I must take into account the proper management and operation of the Court lists and the general desirability of efficiency in the conduct of the litigation. 2. Both senior counsel referred me to the observations of Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ in Aon at [111] to [112]: "[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. 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." (Emphasis added). 1. In my opinion the observations made in the paragraph that follows are also apposite: "[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. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings." The evidence 1. One affidavit was tendered by Mr Bartley authored by a solicitor, Mr Reeks. The affidavit simply annexed the three evidentiary statements of Ms Polsen, the evidentiary statement of Dr Harrison and his clinical notes, a copy of the Murrumbidgee LHD Metabolic Obesity Service Model of Care and a guide from the Royal Australian College of Surgeons on weight loss surgery, which had been an annexure to Dr Harrison's statement. 2. There was nothing at all in the affidavit attempting to explain why the application to amend was made so late. 3. Reliance was also placed on parts of the Agreed Chronology, the Defendant's Statement of Facts and Issues in Dispute, the Joint Liability Conclave of Experts report and specific extracts from the expert reports served on behalf of Ms Polsen set out in the schedule to the written submissions. This material was deployed in support of the argument that all these issues and considerations were "on the table", and all that Mr Bartley was doing in re-drafting the statement of claim was to articulate the claim in line with that material. 4. I interpolate here that all of the reports referred to, except the joint report dated 15 February 2021, were "on the table" prior to the argument about the last series of amendments allowed by Associate Justice Harrison that led to the September 2020 iteration of the statement of claim. Ms Polsen's submissions 1. Written submissions were provided. The submissions state that the amendments fall into two categories; the first relates to "having the pleadings reflect the necessary elements in s 5B and 5D of the Civil Liability Act" and the second, "the addition of two causes of action". 2. The written submissions state "The intention in the drafting of the Second Further Amended Statement of Claim was to set out clearly the scope of the duty of care, the identification of the relevant risks and further, an identification of what the Defendant's response to those risks should have been". A further "explanation" is proffered that implies that all the document seeks to achieve is to set out the existing case in a "sequential form" to "reflect the chronological sequence as set out in the opening submissions". 3. I do not accept that as an accurate reflection of the range, nature and seminal re-casting and expansion of the allegations made against Dr Harrison. 4. The written submissions descend into a type of faux analysis that acknowledges that, for example, there is "no specific pleading" to the effect that "liver dysfunction" increases the risk of surgery, but, "in general terms, issues that related to that delayed and compromised healing, have been a factor in this case since the service of the first reports from Prof Morris and Dr Miller". 5. This submission rather begs the question of why, if the issue was a factor in the case since that time, it was not pleaded in the September 2020 or December 2020 iterations of the Statement of Claim. The expert evidence served by the plaintiff all pre-dates September 2020, and the first reports from Prof Morris and Dr Miller were available in 2016. 6. The claims in trespass to the person and/or battery were added on the basis, it is said, of the content of the defendant's evidentiary statement, served on 20 November 2020. This assertion is not developed further. It was argued that the "factual matrix" is on the table and it is just a matter of the "application of law" to that factual matrix. It does not require further evidence, it is asserted, because "for trespass and/or battery, s 5P of the Civil Liability Act excludes any opinion evidence". 7. It is also stated that the addition of the new causes of action "does not prejudice the defendant" – a rather startling statement in light of the quasi criminal nature of those causes of action being sought to be introduced almost eight years after the events complained of and on day two of the trial. There was no reason offered for that statement; the bald proposition was stated as if that alone was sufficient. 8. A supplementary written submission was provided in response to a request by me for a list of the particulars of negligence that Mr Bartley said were identical to those in the December Statement of Claim. That document served only to highlight the fact that only 2 of the 26 particulars were identical; the other 24 particulars were re-worded in ways that introduce uncertainty, a distinct lack of clarity and, in some instances, very obvious expansion of the case previously made, and in many cases the addition of entirely new particulars of negligence not previously pleaded at all. 9. Reliance was placed on Cropper v Smith (1884) 26 Ch. D. 700 (CA) and State of Queensland v JL Holding Pty Ltd (1997) 189 CLR 146, both of which have been substantially revised and undercut in their effect by the statements of the High Court in Aon. 10. Reliance was placed on Namberry Craft Pty Ltd v Watson [2011] VSC 135 at [38], presumably in support of a submission that none of these limits apply: "Nevertheless, there are to be limits placed upon re-pleading. The High Court in Aon referred to a range of other considerations which need to be weighed in the balance in the exercise of the discretion to grant an amendment to a pleading. The High Court made reference to the following factors: (a) Whether there will be substantial delay caused by the amendment; (b) The extent of wasted costs that will be incurred; (c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded; (d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials; (e) Whether the grant of the amendment will lessen public confidence in the judicial system; and (f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought." 1. Mr Bartley's overall position on behalf of Ms Polsen was that matters relevant to the exercise of the power to permit amendment is informed by the fact that the expert reports to be tendered and issues covered in the Joint Liability Conclave Report are all known and on the table, and so the plaintiff should be given leave to amend to reflect this material, in any way and at any time she likes. Dr Harrison's submissions 1. The proposed Further Amended Statement of Claim does not accomplish any of the clarifications the Court required, but instead re-pleads the case differently. 2. The pleading of the scope of duty Dr Harrison owes to Ms Polsen set out in par 7 of the proposed pleadings is "nonsensical" because: (a) It says nothing of the scope of the duty of Dr Harrison in the context of this case; (b) it makes no distinction between a "medical practitioner" and "General Surgeon" as if the scope of the duty of people fitting those descriptions was the same. That clearly cannot be the case: Sparks v Hobson [2018] NSWCA 29; (c) there is no identification of the "steps" which a reasonably competent medical practitioner and reasonably competent General Surgeon should "take"; (d) no reference is made to the content of the duty of a bariatric surgeon in 2013; (e) the 'scope' is devoid of reference to this particular plaintiff, Ms Polsen; (f) there is no identification of "the risk"; (g) paragraph 7 (a) and (b) are expressed in the conjunctive and alternate so one cannot know what is in fact the true position being adopted by Ms Polsen. 1. The particulars of negligence set out in the proposed pleading are altogether different: (par 72). Ms Polsen now pleads 24 newly framed particulars of negligence and breach of contract. 2. These amended pleadings potentially introduce: (a) an exclusion case; (b) a postponement (or reschedule) case; (c) a "liver dysfunction" case; (d) a different advice case; (e) an earlier referral case; (f) a failure to interrogate, not just the plaintiff, but others; (g) an earlier stenting case; (h) undertaking the surgery; (i) an operative technique case. 1. Without in any way limiting the prejudice occasioned to the defendant, if any one of these cases were to be advanced, just one of them, "liver dysfunction", illuminates the problems created by the additions: 1. For the very first time, the plaintiff pleads that as at 28 May 2013 the plaintiff's liver was "dysfunctional": par 36. No material facts of the "dysfunctional" liver are provided. The pleading then sets out a wholly new case namely that "liver dysfunction", (whether alone or in conjunction with other factors), increased the risks associated with performing the surgery (and its adverse consequences) and that the defendant was thereby negligent: pars 37, 38, 40, 41, 43, 44, 47(f), 47(g), 47(h), 47(i), 51, 52, 53, 54, 55, 58, 61, 62, 65, 66 and 72. 2. No effort has been made in the pleading to identify the nature, extent or dimension of the "dysfunction" which "increased the risks". Those pleadings are impossible to reasonably respond to on the run in the course of a trial. Instructions would need to be obtained, possibly further statements obtained and new expert opinion sought. 1. Section 5D(3)(b) of the Civil Liability Act provides that "any statement made by the person after suffering the harm about what he or she would have done is inadmissible to the extent, if any, that the statement is against his or her interest.": see also Lym International Pty Ltd v Marcolongo [2011] NSWCA 303. In pars 41, 42, 43, 55, 56 and 57 of the proposed amended pleading, Ms Polsen purports to assert that she: 1. would not have consented to the surgery if given advice of the risks: pars 41 and 55; 2. would have deferred surgery if advised it should be deferred: pars 42 and 56; 3. would have rescheduled surgery if given advice: pars 43 and 57. She cannot give evidence of these asserted material facts. The Civil Liability Act does not permit it. 1. Additionally Dr Harrison complains, in the context of s 5D of the Civil Liability Act, the amended particulars of negligence further highlight the failure to identify "the risk of harm" causally associated with the plethora of cases now sought to be advanced. 2. Ms Polsen pleads in par 26 that she "had a psychological history". That pleading has not previously been raised (and, I interpolate is an impossibly vague assertion given the term "a psychological history" is not defined). No material facts of the "psychological history", its nature, diagnosis, extent, chronicity, its treatment or effects are pleaded. It is said, in an apparently related pleading, that the defendant "did not take a psychological history from the plaintiff": par 34. That pleading is said (for the first time) to identify a "central element" of the newly described "risk of harm". 3. Ms Polsen pleads for the first time at par 28 that as at 28 May 2013 she was "consuming excessive quantities of alcohol." No effort has been made to plead material facts of the "excessive" alcohol and its consumption. 4. Apparently in that same context, Ms Polsen now pleads that Dr Harrison was told that she was "seeing Dr Jane Bleasel": (par 33). What Dr Harrison was supposed to do with that information, and why it is said he was obliged to do anything with that information, is not pleaded at all. Decision 1. It is evident that the interests of justice are paramount in determining an application of this kind, and those interests are not confined to only doing justice between the parties. 2. Even if it was, it is not just to allow an amendment eight years after events and four and a half years after proceedings have commenced, where the amendments involve introduce multiple entirely new allegations, some of a quasi criminal nature. 3. The trespass and battery claims lead to an altogether different regime for damages under the Civil Liability Act, as well as potentially introducing evidentiary and other difficulties that would very likely lead to an adjournment. 4. The claims in negligence are sought to be recast in different terms, with new allegations of negligence and in respect of the management of post-surgical complications, different asserted time frames as to when action should have been taken. 5. It is not correct to argue, as Mr Bartley does, that the issues are "on the table" and that is all that has to be said. Dr Harrison is entitled to know which of those issues are being asserted against him and how they are framed. It hardly needs to be stated that it is what is made of the evidence, and what it is alleged that evidence supports, that are the key matters that the statement of claim must identify. 6. The proposed amendments would render otiose all the prior settlement discussions. Preparations for this trial and years of case management would be wasted. 7. The defendant is entitled after this time, the plethora of case management orders and the filing and service of the December 2020 Statement of Claim, to have his trial proceed now. It was listed 18 months ago. He is entitled for that trial to be directed to the pleadings upon which Ms Polsen opened and to be required to meet the case that has been pleaded and that he has prepared to meet; not some other case. 8. The issue regarding fairness to Ms Polsen is whether there has been a sufficient opportunity to present her case. In my view it is evident that there has been more than a sufficient opportunity to do this. 9. An order for costs does nothing to overcome the prejudice created by the proposed pleading, which is likely to de-rail the listed hearing. It is unlikely if that occurred that the matter could be relisted in under 12 months from now. 10. To allow the extensive re-pleading proposed would amount to an "unduly permissive approach", of the kind that French CJ said in Aon should not occur: "[4] Save for the dissenting judgment of Lander J in the Court of Appeal, the history of these proceedings reveals an unduly permissive approach at both trial and appellate level to an application which was made late in the day, was inadequately explained, necessitated the vacation or adjournment of the dates set down for trial, and raised new claims not previously agitated apparently because of a deliberate tactical decision not to do so. In such circumstances, the party making the application bears a heavy burden to show why, under a proper reading of the applicable Rules of Court, leave should be granted. [5] In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried". See also the observations of French CJ at [30] and [31]: "[30] It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes. [31] The amendment allowed in the present case could only be supported as an exercise of the discretion under r 502. On no view was it required by r 501(a). The requirement to make amendments for the purpose of deciding "the real issues in the proceeding" does not impose some unqualified duty to permit the late addition of any new claim. The real issues in the proceeding were to be determined in this case by reference to the limited way in which ANU had deliberately chosen to frame its original claim against Aon, and its persistence in that limited approach up to the trial date itself". (Emphasis added.) 1. To suggest that the proposed pleading is confined to chronological clarifications to bring the pleadings in line with the evidence that has been served, is to underplay the true position and to ignore the new particulars of negligence sought now to be raised. 2. First, if that was truly the position, that should have been done in December 2020, when all the evidence was on the table and the plaintiff was given, and took, an opportunity to prepare yet another iteration of the statement of claim. 3. At the very least, if it was recognised that there was a problem with the case as pleaded and a genuine concern that it was inadequately pleaded, this should have been the subject of a frank application to amend before trial or at least at the beginning of the trial, with appropriate notice being provided to Dr Harrison's legal representation before the case was opened, rather than an opportunistic hijacking of the minor pleading amendment that I requested be attended to in order to clarify two particular aspects of the December 2020 statement of claim. 4. Such an application, if granted, was likely to entail an adjournment of the trial, and there would undoubtedly have been an associated costs order that the plaintiff pay the costs thrown away by the amendments and the adjournment and vacation of the hearing date. 5. An examination of the proposed particulars of negligence demonstrates that the proposed pleading is a Trojan Horse, dressing up as "clarifications" what are entirely new bases of liability. A few examples will suffice to illustrate this position. 6. New particular 72(a) pleads "Failed to exclude the plaintiff as a candidate for surgery". It is submitted on behalf of Ms Polsen that this is akin to particular 17(x) in the December 2020 Statement of Claim: "Failure to exclude the plaintiff as a candidate for gastric sleeve procedure on the basis of alcohol dependence and/or consumption and/or pre surgery medication of methotrexate." 7. Self evidently the proposed new particular has the potential to significantly widen the case to a general failure to exclude the plaintiff from surgery at all, as opposed to a confined case that on particular identified bases, the plaintiff should not have had the gastric sleeve procedure. 8. Paragraph 72(s): "Did not test the staple line closure at the time of surgery so as to ensure there was no leakage" is said by Ms Polsen to correlate to particular 17(l) "Failed to diagnose and/or recognise gastric sleeve leak", however these are not references to the same things. The allegation contained in par 72(r) is completely new. 9. Paragraph 72(q): "Left an inadequate volume of remnant stomach at the time of the surgery" as opposed to "17(h) Failure to leave an adequate amount of stomach in the area of the incisura when performing the gastric sleeve procedure on the plaintiff". The new particular is re-worded in a way that introduces a new and wider potential measure of negligence. 10. Many particulars are conceded in the list provided by Mr Bartley in a somewhat understated fashion, to be "Not directly pleaded" in the December Statement of Claim, followed by a cross-reference to particulars in the December 2020 Statement of Claim. The cross-referenced particulars might appear to cover broadly the same subject matter, but are not at all in the same terms. See 72(d), (e), (h), (i), (j), (k), (l), (p), (q), (u), (v), (x), (x), (aa). 11. Proposed particular 72(bb) seeks to introduce a different time frame within which it is asserted that Dr Harrison "should have referred the plaintiff for reparative surgery three to four weeks after surgery" as opposed to par 17(r) that alleged: "Failure to refer the plaintiff to an experienced gastroenterologist and experienced bariatric surgeon when it was appropriate to do so". The terms of 17(r) are confined to include "referral to an experienced bariatric surgeon". Dr Harrison is an experienced bariatric surgeon and so the particular arguably goes nowhere but the proposed 72(bb) poses an entirely different standard of care ("referral for reparative surgery") to what was alleged in the December 2020 Statement of Claim. 12. I agree with and adopt the submissions made on behalf of Dr Harrison summarised at [67] – [76] of this judgment. 13. The substance and form of the pleadings are problematic in the deployment of vague undefined terms such as "liver dysfunction", "psychological history", and "relevant complications". 14. There is a degree of difficulty and complexity in the case, but it is not especially difficult. The solicitors and counsel are experienced litigators in this field. The solicitors have been in the case since its filing at Wagga Wagga in 2016. The procedures of the court have been availed in a competent manner at all times including last year, an application to widen the case with further expert evidence and to amend the Statement of Claim to take that further expert evidence into account. 15. The amendments are late, extensive, sought after the hearing has started and after four years of opportunities to plead the case properly. 16. To allow the amendments would inflict significant injustice upon the defendant and lead to a waste of costs, a waste of valuable Court hearing time, a waste of the parties' time and a waste of judicial resources. 17. For these reasons the application was refused and the plaintiff must pay the defendant's costs of the application. ********* Polsen v Harrison - FASOC (211737, pdf) Amendments 18 March 2021 - Paragraph 2, line 1 - correction of date from "15 February 2020" to "15 February 2021". 22 March 2021 - Paragraph 51, line 1 – the word "by" before the word "in" removed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2021