Scoppa v Lawless [2001] NSWSC 342

New South Wales Supreme Court

CITATION : Scoppa v Lawless [2001] NSWSC 342 CURRENT JURISDICTION: Common Law Division Professional Negligence List FILE NUMBER(S) : SC 20644 of 1997 HEARING DATE(S) : 26 April 2001 JUDGMENT DATE : 3 May 2001

Dr Joseph Scoppa (Plaintiff) PARTIES : v Michael Adrian Lawless (Defendant) JUDGMENT OF : Master Malpass

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 20644 of 1997 FILE NUMBER(S) : LOWER COURT Deputy Registrar Howe JUDICIAL OFFICER :

COUNSEL : Mr S Davis (Plaintiff) Mr J Downing (Defendant) SOLICITORS : Stacks - The Law Firm with Goudkamp Mahony (Plaintiff) Ebsworth & Ebsworth (Defendant) CATCHWORDS : Review of decision concerning interrogatories - onus - discretionary power - order must be necessary in the relevant sense - fishing interrogatories. LEGISLATION CITED : Supreme Court Rules 1970, Pt 24 r 5 and r 6. Aspar Autobahn Co-operative Society v Dovala Pty Ltd (1987) 16 FCR at 284 - 285. CASES CITED : James v Nationwide News Pty Limited (1992) 110 FLR 274. Markovic v Northern Sydney Area Health Service & Anor [2001] NSWSC 252. DECISION : See Paragraph 21.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

MASTER MALPASS

THURSDAY 3 MAY 2001

20644 of 1997 DR JOSEPH SCOPPA v MICHAEL ADRIAN LAWLESS JUDGMENT 1 These proceedings were commenced in 1997. The proceedings are now in the Professional Negligence List. The plaintiff is an ear nose and throat surgeon. The defendant is an ophthalmic surgeon. The claim concerns four laser surgery procedures performed by him on the plaintiff's eyes. It is said that the procedures involved a degree of novelty. 2 Largely, it is alleged that there has been a failure to warn of risks and a lack of skill in the performance of the procedures. 3 The court has been informed that the defendant has given discovery of his notes and records. 4 The plaintiff has administered a large number of interrogatories. The numbering is in the order of 99 (in fact there are individual questions well in excess of 100 in number). The defendant provided a statement in answer to interrogatories. 5 The plaintiff accepts that the defendant has answered most of the interrogatories. However, he now presses for answer or further answer to about twelve of them. 6 In the answers that have been given, the defendant has provided great detail (including detail of the procedures and of advice that was given). The answers may be found in an annexure to the affidavit sworn by Mr Goudkamp. 7 The plaintiff brought a Notice of Motion seeking relief pursuant to Pt 24 r 5 of the Supreme Court Rules 1970. It was heard by Deputy Registrar Howe (as he then was). On 3 October 2000, he published his decision and the written reasons for that decision. Save as to the granting of relief in respect to interrogatory 45, he refused the granting of relief under the rule. 8 The plaintiff now seeks a review of that decision. The review was undertaken on 26 April 2001. 9 The power to make an order under the rule is discretionary. It is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served between the parties. 10 It is a power to order a statement in answer to interrogatories specified or referred to in the order. The statement is to be in accordance with r 6. Rule 5 restricts the order to interrogatories that relate to any matter in question in the proceedings. The court may order verification by affidavit. The rule prohibits the court from making an order unless it is satisfied that the order is necessary at the time when the order is made ( Markovic v Northern Sydney Area Health Service & Anor NSWSC 252). 11 For present purposes, the relevant interrogatories are those numbered 30 - 31, 36, 43 - 44, 65 - 66, 83, and 89 - 92. The terms of these interrogatories may also be found in the annexure to the Goudkamp affidavit. 12 The court is dealing with a review sought at the instance of the plaintiff and the plaintiff bears the onus of satisfying the court that the decision of the Registrar should be disturbed. The discharge of this onus involves the plaintiff in satisfying the court on a number of matters (including that the order is necessary). In my view, the plaintiff has failed to discharge that onus. 13 The relevant interrogatories fall into two categories. The first of the categories is comprised by the interrogatories numbered 30, 31 and 36. The balance of the interrogatories form the second category and have been the subject of an objection with no answer being given. 14 In the first of the categories, each of the interrogatories has two parts. The first part enunciates the assumptions upon which the interrogatory is based (as to time and the giving of advice or the making of recommendations). The second part poses the question. In each case, the assumption has been rejected by the defendant. Also, No 31 contains error which renders it futile in its present form. 15 The attention of the court was drawn to what was said in Aspar Autobahn Co-operative Society v Dovala Pty Ltd (1987) 16 FCR at 284 - 285 and James v Nationwide News Pty Limited (1992) 110 FLR 274. Although the decision in James may have been raised before the Registrar, it is somewhat unclear as to what he may have been asked to do in relation to it. In any event, I am not satisfied that this is a case in which the defendant has sought to avoid answering questions and/or that the plaintiff should be given leave to reframe the interrogatories. It seems to be a case where the fault lies with the draftsman of the interrogatories who perhaps indulged in an attempt to craft some clever questions. I am not satisfied that the plaintiff is entitled to any relief in respect of any of these interrogatories. 16 Largely, the interrogatories comprised within the second category seek information as to matters such as understanding, belief, assessment, knowledge or reasoning process had or applied by the defendant. 17 There is real issue as to whether any of the interrogatories falling within this category do in fact relate to any matter in question in the proceedings and I am far from persuaded that they so relate. Whether or not any of them can be said to so relate, the necessity for an order still has to be satisfied. The plaintiff is a surgeon himself who has been furnished with detailed answers concerning the matters of advice and of the procedures. Records of the defendant have been discovered. The plaintiff has to demonstrate a present need for the orders sought. 18 There was some debate as to whether or not a concession had been made as to the interrogatories being necessary. The defendant maintains that such a matter has always been in issue. The court was referred to material deposed to in another of Mr Goudkamp's three affidavits. This was material which strictly speaking should have been objected to, but which usually would be treated as submission only. It seems to me that this is the basis on which it should be received by the court in this case. 19 Whilst the expression "fishing expedition" is often loosely used, certain of the interrogatories clearly fall within that description. Interrogatory 83 might be said to afford a classic example ("state your knowledge of the symptoms of surgically induced stigmatism?"). 20 In the circumstances of this case, I am not satisfied that the discretionary power of the court should be exercised in relation to any of the interrogatories (inter alia whichever of the two approaches is taken, I am not satisfied that an order is necessary in relation to any of the interrogatories). Accordingly, I take the view that no basis for the disturbing of the decision of the Registrar has been demonstrated. 21 Therefore, the Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion. **********