Tinnock v Murrumbidgee Local Health District [2015] NSWSC 151

Supreme Court New South Wales

Medium Neutral Citation: Tinnock v Murrumbidgee Local Health District [2015] NSWSC 151 Hearing dates: 13 February 2015 Date of orders: 13 February 2015 Decision date: 13 February 2015 Before: Garling J Decision: Notice of Motion dated 13 February 2015 is dismissed Catchwords: PROCEDURE – civil – application – postponement of conclave of experts – previous application to defer conclave refused – significant cost and disruption if conclave cancelled – application dismissed – no question of principle Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules Texts Cited: Notice of Motion dated 13 February 2015 is dismissed Category: Procedural and other rulings Parties: Kylie Bernadette Tinnock (P) Murrumbidgee Local Health District (D) Representation: Counsel: A J Bartley SC (P) L Young (D)

Solicitors: Commins Hendriks (P) Hicksons (D) File Number(s): 2012/296883 Publication restriction: Not Applicable

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EX TEMPORE Judgment 1. This is an application made by Notice of Motion, by the plaintiff, for an order that the conclave of experts currently scheduled for 4pm today be postponed to a date to be arranged. 2. The application is made, it is said, because it has only recently become apparent that the defendant, Murrumbidgee Local Health District, has adopted the position that it is not vicariously, or otherwise, liable for the conduct of a Visiting Medical Officer, Dr Michael Payne, who either undertook, or supervised the undertaking of, the surgery sued upon. 3. Senior counsel for the plaintiff submits that because this issue has arisen relatively recently, or else been made patent relatively recently, it may be necessary for application to be made by the plaintiff to add Dr Payne as a party. He submits that in the event that that occurs, and the interests of the Local Health District and Dr Payne diverge, then there is a real risk that the joint opinion obtained as a consequence of the conclave today will be significantly wasted because Dr Payne, or any experts qualified by his lawyers in his case, may or may not accept the joint opinion which results from the conclave. 4. It must be said that the defence of the Local Health District does not clearly articulate as the Uniform Civil Procedure Rules ("UCPR") require, the position of the Local Health District, namely, that it is not vicariously or otherwise liable for the conduct of Dr Payne. 5. Contrary to what the Civil Procedure Act 2005 and the UCPR require, the defence does not identify the real issues, but rather dances around the issue, toys with it, and effectively pretends that it doesn't exist. The time has long since passed that institutions which are experienced litigants, can put on defences in such terms, and expect the other parties and the Court to take notice of them. 6. If there is a real issue to be determined as to whether the surgeon undertaking or overseeing the performance of an operation is a person for whom the Local Health District did not regard itself as liable, it was under an obligation to positively plead that. It did not do so in this case. A mere non-admission is, here, wholly inadequate. 7. I have also examined the range of issues which it is proposed to be put before the conclave of experts which seem comprehensively to cover all of the allegations in the statement of claim. The nominated issues seem to be, so far as I can tell on the limited time I've had to examine them, all those which are likely to arise at trial on the question of liability arising out of the surgery. 8. I note that application was made earlier this month to Schmidt J for an order that the conclave be deferred. I am informed that her Honour declined to accede to such an order. 9. Conclaves of experts are, in my view, an essential element in the just, quick and cheap disposition of the real issues in cases such as the present. I am acutely conscious that they are not easy to organise nor are they always cheap. However, the benefit to be obtained from joint opinions arising from conclaves is, in my view, usually significant. 10. In assessing the risk that the Local Health District having taken proper instructions, would continue to deny that it was liable for Dr Payne's conduct is a small one. I have formed the view that even if the Local health District does maintain such a denial, I think the risk that any lawyer acting for Dr Payne will seek to persuade the Court that the joint report of the conclave of experts ought not be relied upon is also small. Even if that risk was to arise, there is no reason why the joint report ought not be admissible, and relevant, to the determination of the issues between the plaintiff and the Local Health District, even if not against Dr Payne. 11. For all of these reasons, I am not satisfied there is any good reason why the conclave of experts scheduled to commence in one hour and 15 minutes ought be postponed. The cost and expense, and significant disruption which would occur if the conclave is to be cancelled is significant. 12. In those circumstances, the application of the interests of justice compels me to refuse to make that order sought in the Notice of Motion.