Supreme Court New South Wales Medium Neutral Citation: Stott v Australian Hospital Care (Pindara) Pty Ltd t/a Pindara Private Hospital [2022] NSWSC 1508 Hearing dates: 23 September 2022 Date of orders: 23 September 2022 Decision date: 23 September 2022 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) The hearing date is vacated. (2) The plaintiff to pay the defendants' costs of the motion to vacate. (3) The plaintiff to pay the defendants' costs forthwith by reason of the vacation of the hearing date. (4) Earlier orders in respect of conclaves are vacated. (5) By 30 November 2022, the plaintiff to serve an evidentiary statement and any other lay statements of any other lay witnesses upon which the plaintiff intends to rely. (6) The plaintiff to serve any additional medical evidence on which the plaintiff intends to rely by 30 November 2022. (7) By 15 December 2022, the plaintiff to write to the solicitors for the defendants, identifying: (a) which experts the plaintiff proposes participate in conclaves and prepare a joint reports; and (b) which experts the plaintiff proposes not meet in conclave but give evidence separately and identify why the plaintiff proposes any expert should not meet in conclave. (8) By 9 February 2023, the defendants to serve any expert medical evidence on which they seek to rely. Catchwords: CIVIL PROCEDURE — hearings — adjournment — application to vacate hearing date — relevant factors — costs — expert witnesses — conclave preparations — long lists of questions and assumptions — overriding purpose of just quick and cheap litigation not being served Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Texts Cited: Practice Note SC Gen 11 Category: Procedural rulings Parties: Christopher Stott (Plaintiff) Australian Hospital Care (Pindara) Pty Limited trading as Pindara Private Hospital (First Defendant) Dr Matthew Scott-Young (Second Defendant) Dr James Yu (Third Defendant) Representation: Counsel: L E Abboud (Plaintiff) S M Kettle (First Defendant) S Habib SC (Second Defendant) M Hutchings (Third Defendant) Solicitors: Gerard Malouf and Partners (Plaintiff) Minter Ellison (First Defendant) Moray & Agnew Lawyers (Second Defendant) HWL Ebsworth Lawyers (Third Defendant) File Number(s): 2019/56950 Publication restriction: None REVISED EX TEMPORE Judgment 1. This matter comes before me today for two purposes: 1. To determine the plaintiff's application for a vacation of the hearing date; and 2. To further consider the issue of what order should be made about conclaves. 1. The matter is listed for hearing on 28 November 2022 for 10 days. 2. As set out in the amended statement of claim filed 27 June 2019, the plaintiff, who is currently 58, pursues three defendants on the basis that they each provided negligent treatment to him at various times. 3. The first defendant is sued on the basis of alleged negligent post‑operative treatment in respect to his neck. The second defendant is sued on the basis that he advised the plaintiff to have surgery which was not indicated. The third defendant is sued on the basis that injections given by the third defendant were either not required or too frequent. 4. The matter came before me on 14 September 2022 in response to motions filed by the plaintiff to vacate the hearing date and another motion in respect of the conclaves. 5. There was a dispute between at least some of the parties in respect of who should be participating in the conclaves. I had occasion to review the affidavits relating to that issue and, as I said on 14 September 2022, I had considerable concern as to what was happening with the conclave process and the cost of the conclave process. 6. I will deal firstly with the plaintiff's application for adjournment. Application for adjournment 1. When the matter came before me on 14 September 2022, the second defendant opposed the adjournment on the basis that the evidence in support of the application was not sufficient to form a view as to the need for the hearing to be adjourned. I made orders about service of further evidence. 2. The plaintiff served a further affidavit of Mr Leslie Abboud, the solicitor for the plaintiff, dated 19 September 2022. 3. Attached to that affidavit was a report of Dr Guy Bashford, dated 19 September 2022. Suffice to say, the plaintiff had undergone further spinal surgery on 27 July 2022 involving revision of his L4/L5 fusion. He continues to present with numbness in his lower limbs and associated weakness. 4. As of today, he is only walking short distances with a frame. According to Dr Bashford, it is highly unlikely he will be medically fit for attendance at the November hearing. Dr Bashford notes the plaintiff's complex past history, including cervical surgery. 5. At least at this stage, the relationship between the need for this lower back surgery and his claims against each of the defendants is uncertain. However, he has had significant surgery and, on the medical evidence, including the earlier evidence served by the plaintiff, he is likely to be unfit to participate in the hearing. 6. In the circumstances, the defendants take a neutral approach to the application. I am satisfied, having regard to the evidence served by the plaintiff, that it is necessary to vacate the hearing date. 7. There is an issue of costs between the parties. The plaintiff accepts that the plaintiff should be liable for the costs of the motion. Mr Abboud initially disputed that there should be any costs order, other than that the costs should be costs in the cause in respect of the vacation of the hearing date. 8. However, the defendants maintain, particularly the second defendant, that the order should be that the plaintiff be ordered to pay the defendants' costs thrown away as a result of the vacation of the hearing date. 9. Mr Habib of Senior Counsel refers to an earlier affidavit of his instructing solicitor, Christine Houston, dated 13 September 2022, in which she refers to the fact that at least the second defendant has already embarked upon significant work in preparation for the hearing, particularly relating to the preparation of the conclave reports. 10. Mr Abboud says that there should not be any costs thrown away by reason of the vacation and submits that all that work relating to the conclaves (i.e. his work) would be necessary in any event, irrespective of when the matter is listed for hearing. 11. On one view, there may be merit in Mr Abboud's submission. That is, the amount of the costs thrown away by reason of the vacation should be quite limited. However, it is not possible for me to determine the amount at this stage and I am not asked to do so. 12. Significantly, the plaintiff had lumbar surgery in July 2022. Despite the very serious nature of that surgery and the likely ongoing consequences of that surgery, the plaintiff did not inform the defendants that he had had that surgery when the matter was before the Court in August 2022. I am not sure whether this is because the plaintiff might have been uncertain as to whether the surgery was related or was uncertain as to whether it would be significant to the hearing date. On a beneficial approach, I would assume the latter. 13. However, that fact is significant in terms of the appropriate costs order. In the circumstances, I accept the submissions, particularly on behalf of the second defendant, that the costs orders should be: 1. the plaintiff to pay the costs of the motion, that is, the current motion for an adjournment; and 2. the plaintiff to pay the defendants' costs thrown away as a result of the vacation of the hearing date. 1. I emphasise that what those costs are will be a matter for argument and assessment at a later time and, lest there be uncertainty, I am not ordering that the plaintiff pay the costs prior to the conclusion of the whole proceedings. Conclave issues 1. When the matter was before me on 14 September 2022, the parties relied on affidavits which made extensive reference to the amount of work they had already undertaken in respect of preparation for the conclaves and joint evidence. I reviewed that material. It seemed to me that the parties were engaged in a process which was either unnecessary or quite contrary to what is intended by the rules relating to expert evidence. 2. As must be apparent from the s 56 of the Civil Procedure Act 2005 (NSW), Part 31, Division 2 of the Uniform Civil Procedure Rules 2005 (NSW) and from Practice Note SC Gen 11, the purpose of requiring the experts to meet and prepare a joint report and then to give evidence concurrently is efficient and cheaper litigation. 3. The experts should meet, discuss and then determine whether there are matters on which they agree and also consider whether there are matters on which they do not agree. 4. It is hoped then that when they come to give evidence concurrently, there will be substantial matters of agreement and the focus of any questioning will be on the matters on which they do not agree. At least in the Court's experience, this process of requiring conclaves, joint reports and concurrent evidence has over many years resulted in a saving of Court time and reduction in legal fees. 5. However, it has become increasingly apparent, at least to me having regard to my hearing of the long matters list in the Common Law Division of the Court, that the cost of expert conclaves and concurrent evidence is skyrocketing and that at least some solicitors are using the expert conclave process as a means of rolling up self-serving questions and assumptions to get answers which are self-evident. 6. In this matter, the plaintiff is suing three defendants for different reasons. The plaintiff has seven experts. Each of the defendants have their own experts. The plaintiff informs me that it is sometimes costing up to $20,000 per expert to have the expert participate in conclaves and provide a joint report. 7. I asked the parties to provide an estimate of the amount that each party would incur in finalising the conclave process. The plaintiff's estimate is between $100,000 to $200,000. The defendants' estimates vary between $17,000 to $35,000 with a maximum of $87,000 to complete the process. 8. The amount of the estimates may be reflective of the number of experts involved. It must be said that the plaintiff's assessment is higher than that of any defendants, but the combined estimate in this case is that it will take $300,000 to finish off the expert conclave process. 9. The expenditure of such a sum is hardly consistent with the quick, cheap and just conduct of this type of litigation. 10. Further, it is at least apparent in this matter that the general approach to preparation for joint reports is not consistent with that which the Court intends. 11. I asked the solicitor for the plaintiff about his approach, and he (frankly) said that it was important that he represent the interests of his client and that he took the approach of putting forward assumptions and questions which would serve his client's case. 12. It is unsurprising, in those circumstances, that there is a substantial dispute between the parties as to the long list of questions and assumptions which have been proposed by the plaintiff. The solicitor for the plaintiff says that he is forced to adopt that approach because the defendants adopt the same approach. 13. It is not my function at this time to determine who may be right and who may be wrong on that issue, but it must be that if the conclave process is being used by parties to merely propose a series of self-serving assumptions and questions to get the answer which must suit that party, then the process is not working. 14. Mr Habib of Senior Counsel on behalf of the second defendant agreed that the process had, in effect, miscarried because of the insistence on a long list of assumptions. 15. Assumptions are no doubt important in many cases and assist the Court, but it is not part of the conclave process that the parties simply prepare pages of assumptions for the experts to go through so that they may prepare a joint report, when the experts have already prepared their own reports. 16. It is unsurprising, in those circumstances, that there might be a dispute about the assumptions. As it happens in this matter, the hearing date has been vacated and the conclave process will have to re-commence to take account of, at least to some extent, the new evidence from the plaintiff. 17. Mr Abboud proposes that the experts should be asked simply as to what they agree on and what they do not agree on and the reasons why they do not agree. That may be a sensible approach in many matters but it is not my function in this judgment to set down a series of rules as to how the parties should prepare for conclaves and what the experts should be asked. 18. Nevertheless, having regard to the quite significant costs which are apparently being incurred in personal injury matters, in my view, the extent to which experts are being used and the way in which they are being used in these types of matters needs to be addressed. On the estimates provided in this matter, the overriding purpose is not being served. 19. In my view, the way forward in this matter is to: 1. Further consider whether it is necessary that all of the experts participate in conclaves, that is, whether joint reports are necessary in respect of each defendant and in respect of each area of expertise; and 2. Direct that if joint reports are required, there should be a limited number of questions for each expert without the pages of assumptions which are currently being put forward. 1. I make the following orders: 1. The hearing date is vacated. 2. The plaintiff to pay the defendants' costs of the motion to vacate. 3. The plaintiff to pay the defendants' costs forthwith by reason of the vacation of the hearing date. 4. Earlier orders in respect of conclaves are vacated. 5. By 30 November 2022, the plaintiff to serve an evidentiary statement and any other lay statements of any other lay witnesses upon which the plaintiff intends to rely. 6. The plaintiff to serve any additional medical evidence on which the plaintiff intends to rely by 30 November 2022. 7. By 15 December 2022, the plaintiff to write to the solicitors for the defendants, identifying: 1. which experts the plaintiff proposes participate in conclaves and prepare a joint reports; and 2. which experts the plaintiff proposes not meet in conclave but give evidence separately and identify why the plaintiff proposes any expert should not meet in conclave. 1. By 9 February 2023, the defendants to serve any expert medical evidence on which they seek to rely. ********** 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: 08 November 2022