New South Wales Supreme Court CITATION : Wilson v Brookes & Anor [2002] NSWSC 531 CURRENT JURISDICTION: Common law FILE NUMBER(S) : SC 020109/01 HEARING DATE(S) : 30 May 2002 JUDGMENT DATE : 30 May 2002 PARTIES : Virginia Wilson v Michelle Brookes & Anor JUDGMENT OF : O'Meally AJ at 1-27 Mr J Poulos QC with Mr R M Gordon for the plaintiff. COUNSEL : Mr P L G Brereton SC for the defendants. McLaughlin & Riordan Solicitors (Plaintiff) SOLICITORS : Blake Dawson Waldron (Defendants) CATCHWORDS : Professional negligence - interrogatories LEGISLATION CITED : Supreme Court Rules- Part 14C rule 6 DECISION : 1. Grant leave to the plaintiff within seven days to administer interrogatories to each defendant in the form settled before me today; 2. Order the defendants within 42 days of service of the notice to give verified answers to interrogatories; 3. Order the plaintiff on or before 22 August 2002 to file and serve expert reports in the nature of those specified in part 14C rule 6(1); 4. Order the defendants on or before 17 October 2002 to file and serve expert reports in reply; 5. A conference hearing is fixed for 23 October 2002, or such other day as the registrar may appoint; 6. The defendants will pay the plaintiff's costs of and associated with the defendants' notice of motion, filed 10 December 2002; 6. In respect of the plaintiff's notice of motion filed 14 December 2001, no order as to costs, so that each party will bear her and his own costs. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION O'MEALLY AJ THURSDAY 30 MAY 2002 020109/01 - VIRGINIA WILSON v MICHELLE BROOKES & ANOR JUDGMENT HIS HONOUR: 1 Virginia Wilson is the widow of the late Ronald Wilson, who died on 20 February 1998 during the course of surgery conducted at Royal Prince Alfred Hospital. 2 She has sued Dr Michelle Brookes and Professor Brian McCaughan. The first defendant is an anaesthetist. The second defendant is a thoracic surgeon, and is one of two surgeons present during part of what was a complicated surgical procedure carried out upon Mrs Wilson's husband. 3 Before me are two applications. The first in point of time was filed on 10 December 2001 by the defendants, seeking that the proceedings be struck out by reason of the failure of the plaintiff to comply with part 14C rule 6, and in the alternative that the proceedings be dismissed pursuant to part 33 rule 6(2). In the manner in which the defendants' application has been conducted, they rely only on the failure to comply with part 14C rule 6. 4 The other application is one brought by the plaintiff. It was filed on 14 December 2001. It seeks orders that each defendant be required to answer interrogatories. 5 This case came before Bell J on 18 May 2001, and consent orders were made. Relevantly, leave was granted to the plaintiff to administer interrogatories, and the defendants were ordered to provide verified answers. The plaintiff was required to serve medical reports, and so were the defendants. Dates were specified for the serving of interrogatories, for answers to be given, and for the service of medical reports. None of these orders has been complied with. 6 It has emerged that matters ventilated before me were in the contemplation of Bell J when she made the orders on 18 May last. 7 The plaintiff did not file with her Statement of Claim a medical report in conformity with Part 14C Rule 6(1). The plaintiff's solicitor did file an affidavit in which she said that the Statement of Claim was filed when it was to avoid a possible defence under the Limitation Act, that a medical report in conformity with Part 14C Rule 6 had not then been obtained but such report would be filed when obtained. The plaintiff has sought, from medical specialists resident in the United Kingdom, expert opinion concerning the allegations of negligence made against the defendants. Opinion has been sought from a specialist anaesthetist and a specialist thoracic surgeon. 8 The main disputes raised by the applications now before me have been resolved by discussion between counsel and myself, and in the result it has been agreed that interrogatories in a form now agreed upon will be administered to the defendants within one week and answered within six weeks of service of the notice. It has also been agreed and that the plaintiff's medical reports will be filed and served within six weeks thereafter. 9 What remains in issue is whether the defendants should have access to correspondence passing between the plaintiff's solicitors and the two experts resident in the United Kingdom. That correspondence was the subject of a notice to produce. It has been produced to the Court, but objection has been raised to its being made available to the defendants, on the basis that the material within it is privileged. 10 The defendants accept that the material within it could be privileged, but submit that privilege has been waived by reason of the plaintiff's solicitor having said in an affidavit that it was impossible to comply with the requirements of part 14C rule 6 unless the experts in the United Kingdom were provided with certain information upon which they could base their opinions.. That this is so is confirmed by annexures C and D to the solicitor's affidavit sworn 31 January 2002. The information was to be obtained by interrogation of the defendants. 11 In my view, there has been no waiver of privilege. The letter from the expert anaesthetist, which is annexure C to the affidavit of the plaintiff's solicitor, indicates that before he could provide a considered opinion, it was essential that answers to specific questions be given, and where appropriate with documentation. 12 A letter from the specialist thoracic surgeon indicated that he was unable to provide a report unless he had a report from the anaesthetist, and an explanation from the surgeon as to why he left the operating room during the procedure. 13 The experts are resident outside of Australia, and lengthy communication by telephone would have been both expensive and, by reason of time differences, difficult. I have read in a cursory fashion the correspondence between the plaintiff's solicitor and the source of expert opinion in the United Kingdom. It did not influence me on the question of interrogatories and medical reports. However, it is appropriate to note that in the correspondence there was discourse concerning expression of expert opinion which would be dependant upon data concerning events which had occurred before and during surgery. 14 It really appears to me that the situation before me is as it was when directions for the conduct of the case were given by Bell J on 18 May. Such differences as arose from the consent orders made have now been resolved. 15 It was not in contemplation on 18 May last that the defendants would seek access to the material passing between the plaintiff's solicitor and the experts in the United Kingdom, but it was in contemplation that the plaintiff would be entitled to have answers to interrogatories before serving medical reports in conformity with Part 14C Rule 6 and so that such reports might be prepared. 16 The defendants may not have access to the correspondence passing between the plaintiff's solicitor and the United Kingdom experts. 17 The orders are: Grant leave to the plaintiff within seven days to administer interrogatories to each defendant in the form settled before me today. Order the defendants within 42 days of service of the notice to give verified answers to interrogatories. Order the plaintiff on or before 22 August 2002 to file and serve experts reports in the nature of those specified in part 14C rule 6 (1). Order the defendants on or before 17 October 2002 to file and serve experts reports in reply. A conference hearing is fixed for 23 October 2002, or such other day as the Registrar may appoint. 18 The question now to be determined is who should bear what costs. 19 In resolving this question it is appropriate to note again that initially the matter came before the Court on the motion of the defendants, seeking that the proceedings be struck out by reason of a failure to file and serve a medical report or reports of the type referred to in part 14C rule 6 (1). It also sought, and to this I failed earlier to make reference, that the order of Bell J, made by consent on 18 May 2001 which required the defendants to provide verified answers to interrogatories, be vacated. 20 It was, as observed earlier, in contemplation on 18 May 2001 that the plaintiff could not provide such medical reports without interrogatories first being answered by the defendants. 21 It is the case, as the exchanges between counsel and myself earlier today confirmed, that the great bulk of the interrogatories asked were objectionable in form, and some were vexatious. The fact remains, however, that the substance of those which were objectionable in form were permitted upon a redraft. 22 Whilst it is the case that each party has failed to obtain orders which each sought, the plaintiff has obtained an order requiring answers in substance to what was requested in an inappropriate form. 23 The question of costs has caused some difficulty, but in the end I have been persuaded to the view that the plaintiff should have the costs of resisting the defendants' motion. 24 The plaintiff did provide amended interrogatories to the defendant, but not until this morning. During the course of discussion between counsel and myself the interrogatories were again amended and put into proper form. A number was disallowed. 25 I do not think it would be appropriate to require the defendants to pay costs related to the interrogatories, but they should pay the plaintiff's costs incurred in relation to their application. On this the plaintiff substantially succeeded. 26 The defendants will pay the plaintiff's costs of and associated with the defendants' notice of motion, filed 10 December 2001. 27 In respect of the plaintiff's notice of motion filed 14 December 2001, I make no order as to costs, so that each party will bear her and his own costs. oOo Last Modified: 06/17/2002 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.