Ralston and Collins v Chaffey

1. [1]

   Jane Ralston, the plaintiff in proceedings 2014/5095, is the mother, and Malcolm Collins, the plaintiff in proceedings 2016/17192, is the father, of Paige, who was born on 20 November 2004 with a high level (60%) mosaic Down Syndrome. The plaintiffs brought proceedings against six defendants regarding the inadequacy of the care with which Ms Ralston was provided during her pregnancy in relation to detecting that the child had Down Syndrome.

2. [2]

   The first defendant was the plaintiff’s general practitioner. The second defendant was a medical practitioner carrying on business as an obstetrics and gynaecology ultrasound and pre-natal diagnosis specialist. The third defendant was a company that performed pathology tests. The fourth and fifth defendants were general practitioners, and the sixth defendant was an organisation that carried out risk calculations and assessments for screening of Down Syndrome. The proceedings against the third defendant have been resolved by a consent judgment in favour of the third defendant dated 25 May 2018.

3. [3]

   By an amended notice of motion filed 26 September 2018, originally filed on 3 August 2018, Ms Ralston seeks to rely on two reports of Dr Steven Chow of 30 March 2018 and 11 June 2018, and to rely on the report of Professor Kevin Spencer dated 1 September 2018. Dr Chow is a specialist obstetrician gynaecologist sonologist, and Professor Spencer is a consultant biochemist and a leading worldwide authority in matters related to pre-natal screening for trisomy 21 and other chromosomal anomalies.

4. [4]

   The need for leave arises because of earlier orders made by the Registrar including a guillotine order that prevented the plaintiffs from relying on reports not served by a certain date.

5. [5]

   No notice of motion has been filed by Mr Collins, but it is agreed that the outcome on Ms Ralston’s motion will bind the parties in the claim by Mr Collins. The same solicitors act for Mr Collins as act for Ms Ralston. Any reference hereafter to “the plaintiff” is a reference to Ms Ralston.

Background

1. [6]

   Ms Ralston became pregnant with Paige at the age of 37 years in early 2004. She attended the first defendant on 13 April 2004 and was referred for blood tests including a screening for Down Syndrome. She was also referred to Dr Wass for the purposes screening for Down Syndrome. Dr Wass was the second defendant in the proceedings but she died on 23 May 2016. Her executor has been substituted as the second defendant.

2. [7]

   Blood was collected from Ms Ralston on 29 April 2004 and sent to the third defendant for the purposes of carrying out blood tests including screening for Down Syndrome. In fact no screening took place.

3. [8]

   On 20 May 2004 Dr Wass carried out an ultrasound nuchal translucency (NT) scan on Ms Ralston. The results of that scan were forwarded to the sixth defendant.

4. [9]

   On or about 31 May 2004 Dr Wass became aware that there were no blood tests carried out for diagnosis of Down Syndrome. She telephoned Ms Ralston and advised her about that matter. It seems that Dr Wass said this to Ms Ralston:

5. [10]

   The plaintiffs allege that on 9 July 2004 Ms Ralston underwent a morphology scan carried out by Dr Wass. She reported to Ms Ralston on that date that the morphology scan was normal.

6. [11]

   The plaintiff pleads that if she had been informed prior to 20 weeks gestation that the child she was carrying was suffering from Down Syndrome she would have taken steps to have the pregnancy terminated.

7. [12]

   The present motion is only opposed by the second defendant. The first, fourth, fifth and sixth defendants neither consent nor oppose leave being given.

8. [13]

   The particulars of negligence against the second defendant are these:

Procedural history

1. [14]

   The statement of claim by Ms Ralston was filed on 7 January 2014.

2. [15]

   On 10 April 2014, the plaintiff served a report of Professor Robert Bryce, a specialist obstetrician and gynaecologist, dated 7 January 2013.

3. [16]

   The proceedings first came before the Court on 14 April 2014 when the Registrar made the following orders (inter alia):

4. [17]

   On 18 June 2014 the Registrar made these orders:

5. [18]

   On 3 September 2014 the Registrar made the following orders:

6. [19]

   On 24 September 2014 the Registrar made the following order:

7. [20]

   The proceedings were before the Registrar on 8 October 2014. On that occasion the Court noted:

8. [21]

   On 10 December 2014 the proceedings were before the Registrar. The Court made orders for the plaintiff to serve expert evidence against the third, fourth and fifth defendants whilst:

9. [22]

   On 12 December 2014 the solicitors for Dr Wass served a report from Professor Jonathon Hyett, a specialist obstetrician and gynaecologist.

10. [23]

    On 4 March 2015 the Registrar made the following order:

11. [24]

    On 24 June 2015 the Registrar made the following order:

12. [25]

    On 1 September 2015 Professor Kevin Spencer, a consultant biochemist in the United Kingdom, was retained by the solicitors for the plaintiffs.

13. [26]

    On 2 September 2015 when the proceedings were before the Court, the following orders were made:

14. [27]

    On 1 October 2015 Professor Spencer provided his first report to the plaintiffs’ solicitors. It was served on Dr Wass’s solicitors on 6 October 2015.

15. [28]

    On 7 October 2015 when the proceedings were before the Court, the following order was made:

16. [29]

    On 28 October 2015 the plaintiff filed a notice of motion seeking leave to file an amended statement of claim, but did not seek leave to rely upon further expert evidence.

17. [30]

    On 17 May 2016, Dr Wass’s solicitors retained Dr Michael Sinosich. Dr Sinosich, like Professor Spencer, was a scientist with expertise in pre-natal testing.

18. [31]

    On 23 May 2016 Dr Wass died.

19. [32]

    On 27 September 2016, pursuant to an order made on 31 August 2016, the plaintiff filed a second further amended statement of claim which substituted for Dr Wass the executor of Dr Wass’s estate.

20. [33]

    On 15 February 2017 the proceedings were before the Court. Amongst the orders made were the following:

21. [34]

    On 8 May 2017 the second defendant served the report of Dr Michael Sinosich dated 5 May 2017.

22. [35]

    On 4 October 2017 and 4 April 2018 the proceedings were before the Court. No application was made by the plaintiff to extend time for service of evidence in reply. On those days, orders were made only for the parties to mediate by two identified dates.

23. [36]

    On 7 November 2017, the plaintiffs’ solicitors retained Dr Steven Chow, a specialist obstetrician gynaecologist sonologist.

24. [37]

    On 5 April 2018 the plaintiffs’ solicitor, Mr Geoffrey Potter, received a report from Dr Chow dated 30 March 2018. He thereafter provided further instructions to Dr Chow on 4 June 2018. He received a second report from Dr Chow dated 11 June 2018. The plaintiffs’ solicitor served those reports on the second defendant on 18 June 2018.

25. [38]

    The notice of motion filed 3 August 2018 was listed before Wilson J on 28 September 2018. At that time, all that was sought was leave to rely upon the two reports of Dr Chow. Counsel for the plaintiff sought an adjournment of the hearing of the motion for two reasons. The first was to enable the filing of an amended notice of motion to seek leave to rely on the report of Professor Spencer of 1 September 2018. The second reason was that Mr Potter, who had sworn an affidavit in support of the motion, was not available for cross-examination. In those circumstances Wilson J adjourned the notice of motion to the Registrar’s list on 3 October 2018 and ordered the plaintiff to pay the defendants’ costs thrown away by the adjournment.

26. [39]

    When the matter came before Prothonotary Kenna on 3 October 2018, the Prothonotary listed the amended notice of motion for hearing before the Common Law Duty Judge on 19 October 2018. On that day Johnson J was the Duty Judge. In his Honour’s view, a view ultimately confirmed by senior counsel for the plaintiff and counsel for the second defendant, the matter would take half a day to hear. Justice Johnson as duty judge did not have half a day to hear the motion on that day. A further reason the matter was required to be adjourned was that, once again, Mr Potter was unavailable when he was required for cross-examination. His Honour stood the matter into the Registrar’s list on 24 October 2018. On that day it was fixed for hearing on 6 December 2018 on the basis that it would take a whole day to hear.

The rule

1. [40]

   The applicable rule for consideration of the present application is Uniform Civil Procedure Rules 2005 (NSW) r 31.28 which provides:

Submissions

1. [41]

   The plaintiff accepted that exceptional circumstances must be demonstrated to warrant the granting of leave. The plaintiff submitted that those circumstances are that the report of Dr Sinosich served by the second defendant created the requirement for the plaintiff to obtain expert evidence as to pre-natal screening for Down Syndrome in Australia. The plaintiff submitted that until 5 May 2017 no such issues had been raised and there was no requirement for the plaintiff to obtain evidence of that nature.

2. [42]

   The plaintiff submitted that as a matter of procedural fairness the second defendant should not be permitted to introduce the evidence of Dr Sinosich, which raised specific issues as to the pre-natal screening for Down Syndrome in Australia, but then argue that an order made 20 months previously in 2015 should prevent the plaintiff from serving any evidence in relation to the issues raised. The plaintiff submitted that it must have been apparent to the lawyers for the second defendant when Dr Sinosich was instructed in May and December 2016 that the plaintiff would wish to serve evidence in response to that.

3. [43]

   The plaintiff submitted that there was no prejudice to the second defendant given that she had retained experts who have been instructed and had produced reports over a number of years. Further, the training records of the second defendant were readily available to those experts as they were to Dr Chow. In that way, the second defendant is able to meet the reports of Dr Chow.

4. [44]

   The plaintiff submitted that if she was not permitted to rely on the reports of Dr Chow she would suffer serious prejudice, which would far outweigh any short term disruption to the current timetable or to any perceived prejudice to the second defendant. The plaintiff submitted that when the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) was regarded, reliance on the reports of Dr Chow assisted with identifying the real issues and facilitating the just, quick and cheap resolution of the proceedings whether in mediation or at a hearing.

5. [45]

   The plaintiff further submitted that the report of Professor Spencer of 1 September 2018 partly responds to the report of Dr Sinosich and partly to Dr Chow’s reports as to NT testing being applicable to the plaintiff.

6. [46]

   The plaintiff submitted that paragraph 4 of the second further amended statement of claim specifically raises the issue of Dr Wass’s training, and pointed to the admission of that paragraph by the second defendant in the defence. The plaintiff submitted that the issue of training was further raised by Dr Sinosich.

7. [47]

   The second defendant does not oppose leave being granted with respect to Professor Spencer’s response to question 1 asked of him by the solicitors for the plaintiff.

8. [48]

   The second defendant submitted that the Chow reports are not responsive to Dr Sinosich either as to subject matter or expertise. The second defendant pointed to four matters in that regard:

9. [49]

   The second defendant submitted that it appears that the service of the Chow Reports was motivated by the plaintiff’s perception of a difficulty in or alternative to her case that had existed since it was filed in 2014 and since her service of expert evidence on liability completed in 2015. The second defendant submitted that that is not a matter capable of being described as exceptional sufficient to justify the granting of leave.

10. [50]

    The second defendant submitted that she would suffer serious prejudice if the plaintiff were permitted to rely upon the Chow Reports. Since Dr Wass has died, the second defendant is unable to obtain information regarding the matters the Chow Reports raise.

11. [51]

    The second defendant submitted that the Chow Reports allege that Dr Wass's care of the plaintiff was deficient in a number of ways not previously raised by the plaintiff. Those deficiencies include suggestions that Dr Wass performed an ultrasound on the plaintiff in a manner that was deficient, that Dr Wass held inadequate qualifications for the work she was performing, and that a statement made by Dr Wass during a phone call with the plaintiff was misleading. The second defendant submitted that they were not matters pleaded or particularised in the second further amended statement of claim.

12. [52]

    The second defendant submitted that granting leave would be inconsistent with the overriding purpose and principles outlined in ss 56 to 59 of the Civil Procedure Act in circumstances where the proceedings commenced four years ago and relate to events that occurred 14 years ago, the second defendant was ready to proceed to mediation and hearing prior to the service of the Chow Reports, where the second defendant would now need to instruct an expert which will delay any hearing date, where the plaintiff has already served substantial expert evidence relating to the liability of the second defendant, and where the Chow Reports raise allegations outside the plaintiff's pleaded case.

13. [53]

    The second defendant submitted that the assertion by the plaintiff’s solicitor that the Chow Reports were required by reason of Dr Sinosich’s report is inconsistent with the fact that Dr Chow was not provided with the report of Dr Sinosich and it was not referred to in his instructions, and the fact that in December 2014 and June 2015 the second defendant served expert reports that extensively considered pre-natal screening in Australia, being the reports of Clinical Professor Jonathan Hyett and Dr Debra Kennedy.

14. [54]

    The second defendant submitted that the second affidavit from the plaintiff’s solicitor offers no explanation as to why it took the plaintiff 13 months to obtain the Chow Reports or why the prospect of those reports was never raised with the second defendant or the Court prior to June 2018.

15. [55]

    The second defendant submitted that the assertion by the plaintiff that Dr Sinosich further raised the issue of training cannot be accepted. The only reference in Dr Sinosich's report is where he stated:

Consideration

1. [56]

   In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Campbell JA (Tobias JA and Handley AJA agreeing) said of the term “exceptional circumstances” in UCPR r 31.18, which was the predecessor to UCPR r 31.28 and in identical terms, the following:

2. [57]

   Further, s 58 of the Civil Procedure Act provides:

3. [58]

   Dr Chow’s first report of 30 March 2018 is a wide ranging report. A fair description of it would be a report prepared by an expert who was asked to tell the solicitor everything he saw that was wrong with the way the plaintiff’s treating doctors, and Dr Wass in particular, had conducted themselves in treating the plaintiff. The report nowhere comments on Dr Sinosich’s report, which is scarcely unusual since Dr Chow was never provided with that report.

4. [59]

   There is no doubt that much or most of what is contained in the report could not in any sense be described as evidence in reply. The way the report is expressed in many respects falls foul of the requirements of the Expert Witness Code as well as what the authorities such as Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 require. The report raises new issues well outside the existing pleading and particulars. It challenges Dr Wass’s qualifications to have carried out the testing, the way she conducted the testing and her interpretation of the testing. It includes Dr Chow’s own analysis of the scan on the DVD which was provided to him, resulting in his conclusion that the NT measurement was 2.2mm and not 1.3mm as Dr Wass had reported.

5. [60]

   The answers to questions 2 and 3 in Professor Spencer’s third report responded to enquiries which asked him to assume that the NT measurement was 2.2 and to express opinions about what that indicated for the plaintiff’s assessment and treatment.

6. [61]

   The plaintiff’s solicitor, Geoffrey Potter, swore two affidavits in support of the present application. The first affidavit of 20 July 2018 chiefly detailed the reports served by the parties in the proceedings and made reference to a number of directions hearings where particular orders had been made. Having referred to the service of the report of Dr Sinosich, he said at paragraph 19:

7. [62]

   In his second affidavit sworn 15 October 2018, Mr Potter noted that he had instructed Professor Kevin Spencer, a prominent expert in the field of the detection of Down’s Syndrome (Trisomy 21), and that Professor Spencer had provided three reports. Mr Potter went on to repeat that, having received the report of Dr Sinosich, he considered that the plaintiffs should obtain an expert “to review the issues raised by Dr Sinosich.” He identified Dr Chow, instructed him on 7 November 2017, and subsequently conferred with him on 24 January 2018.

8. [63]

   Mr Potter said that Dr Chow raised a number of issues in relation to the testing that was carried out, and to the failure by Dr Wass to recognise what Dr Chow described as gross abnormalities. Mr Potter said it became apparent from that conference that the plaintiffs ought to investigate the qualifications of Dr Wass, her previous level of achievement in relation to detection rates, and her history with the RANZCOG.

9. [64]

   Mr Potter said that, having received the report of Dr Chow, presumably of 30 March 2018, and the report of Dr Sinosich, he provided those reports to Professor Spencer for comment. He then said at paragraph 8:

10. [65]

    Mr Potter’s oral evidence was to this effect. He retained Dr Chow to provide a local expert’s view on the matters set out in Dr Sinosich’s report. Although he had reports from Professor Spencer, Professor Spencer was an overseas expert. He did not initially give specific instructions to Dr Chow concerning what expert opinion he should provide. He did not provide Dr Chow with a copy of the statement of claim or indicate to him the particulars of negligence alleged against Dr Wass. His initial instructions were general in that regard.

11. [66]

    When he met with Dr Chow, Dr Chow raised a number of issues about the way the doctors, and Dr Wass in particular, had carried out their tasks. He did not provide Dr Chow with Dr Sinosich’s report because that was his usual practice. He wanted the expert’s view at least initially independent of any reports to which his report might be responding. He did not feel it was appropriate to confine Dr Chow’s expert opinion. At no stage did he provide written instructions to Dr Chow that specified the particular matters on which he needed Dr Chow’s expert opinion. He never provided Dr Sinosich’s report to Dr Chow.

12. [67]

    I did not find the evidence of Mr Potter at all satisfactory, nor did I find his approach to the briefing of Dr Chow to be satisfactory. There were no written instructions to Dr Chow, other than in the most general terms. Mere oral instructions in a conference, in respect of which there do not appear to be any notes whether contemporaneous or otherwise, is not an appropriate way for an expert to be retained. The opposing party is entitled to understand what was asked of the expert. It was counter-intuitive not to provide Dr Chow with the report of Dr Sinosich if it was really the case that Dr Chow was retained to respond to issues raised by Dr Sinosich.

13. [68]

    Mr Potter’s approach to retaining Dr Chow may be contrasted with his approach to Professor Spencer. Having retained Professor Spencer in general terms and, presumably conferred with him, Mr Potter then wrote a detailed letter on 10 September 2015 asking for a report in response to 13 specific questions. Although Mr Potter wanted to suggest that he dealt with Dr Chow no differently from any other expert, his approach to Professor Spencer suggests otherwise.

14. [69]

    I cannot escape the feeling that a number of answers given by Mr Potter in cross-examination were given to justify the approach he was taking to what eventuated from his dealings with Dr Chow. Since he had not directed Dr Chow’s attention in the first instance to the report of Dr Sinosich and to the issues raised by him, Dr Chow provided a general opinion which, on its face, provided new and different evidence of negligence on Dr Wass’s part. If this evidence was to be relied upon by the plaintiff in the proceedings, it should have been obtained from Professor Bryce or from some other expert including Dr Chow at a much earlier time. That is so because time limits were imposed on the plaintiff for the service of reports dealing with liability and causation. In ordinary circumstances, that might not have provided the same barrier to the plaintiff relying on the new evidence, but in the present case, the significant matter is that Dr Wass died in 2016 and is not in a position to respond to the new evidence.

15. [70]

    It became clear during the submissions by senior counsel for the plaintiff that the plaintiff would not be able to rely on all of the material contained in Dr Chow’s reports, largely because Dr Wass had died and the prejudice that would result if all of the evidence in Dr Chow’s reports were admitted. Further, no proposed amended pleading or particulars had been provided so that the second defendant and the Court could understand what new issues were sought to be raised. It was necessary, therefore, to adjourn the application so that those acting for the plaintiff could identify precisely the parts of Dr Chow’s reports they were seeking to rely upon and to make necessary amendments to the statement of claim where new issues were raised.

16. [71]

    When the matter returned to Court on 12 December 2018, the plaintiff had served a proposed further amended statement of claim comprising the following pleading and particulars:

17. [72]

    The parts of Dr Chow’s first report that are now sought to be relied upon against Dr Wass are what follows:

18. [73]

    The plaintiff also seeks to rely on the answer to question 2 contained in Dr Chow’s second report of 11 June 2018 as follows:

19. [74]

    The threshold issue for determination of the present application is whether exceptional circumstances are demonstrated that warrant the granting of the leave to rely on the evidence of Dr Chow and Professor Spencer. The enquiry is not simply whether the circumstances by which Mr Potter came in possession of the information in Dr Chow’s report were unusual or special or uncommon. There must be exceptional circumstances that warrant the granting of leave.

20. [75]

    In some respects it could be said that the way Mr Potter went about obtaining Dr Chow’s opinion was unusual or uncommon, in that most solicitors acting properly would not have adopted Mr Potter’s approach to retaining an expert. That approach was one that was said to be the obtaining of expert opinion to answer an opinion provided by an expert on the other side, but then not directing that expert’s attention to the evidence to which a reply was necessary, and simply obtaining a general opinion about all aspects of the treatment received by the solicitor’s client.

21. [76]

    However, that cannot be exceptional circumstances that warrant the granting of leave because that approach to retaining the expert was an improper approach in the circumstances. That improper approach produced new evidence which, in terms of the orders made, was not evidence that was entitled to be adduced. If Mr Potter had retained Dr Chow in an appropriate way, provided him with Dr Sinosich’s report and other necessary information such as the statement of claim, and sought Dr Chow’s response to what Dr Sinosich had said about the current practice in New South Wales of screening for Down Syndrome in 2004, the strong likelihood is that the width of the discussion that appears in Dr Chow’s report would not have emerged. Contrary to Mr Potter’s evidence, it was his responsibility to ensure that Dr Chow provided an expert opinion in the narrow area for which Mr Potter said he retained Dr Chow.

22. [77]

    There was nothing unusual or special about the course that was in fact followed by Mr Potter which was, in substance, to obtain a general opinion from a new expert about what the defendants, and Dr Wass in particular, had done in their treatment of Ms Ralston. Mr Potter may not have initially intended that result, but when the new opinion emerged by reason of his unorthodox approach, he seized it. However, that does not make those circumstances exceptional within the meaning of the rule.

23. [78]

    As was made clear in Yacoub, it is necessary to keep in mind the rationale of UCPR r 31.28 and the objectives in the management of civil litigation in ss 56-59 of the Civil Procedure Act. The rationale of r 31.28 and the objectives in ss 56-59 tell strongly against the circumstances in which Mr Potter obtained these reports being exceptional warranting leave being given to rely upon them. I do not accept the plaintiff’s submission that the rule was introduced only to ensure that the other side had notice of the expert evidence that was to be led by a party. The rule was also intended for general case management reasons; so much is clear from paragraphs (a) and (b) of subrule (1).

24. [79]

    Even if I had been satisfied that there were exceptional circumstances that warranted leave, I would have refused such leave in the exercise of my discretion. That is principally, but not entirely, because Dr Wass died in 2016.

25. [80]

    When one has regard to the portions of the redacted first report set out at [72] above that appear in italics, it is clear that the second defendant would be prejudiced to a marked degree in circumstances where Dr Wass is not able to answer the allegations in those parts of the report. It is significant that until Dr Chow’s report, the litigation had proceeded on the basis that the reading on the NT was 1.3mm, whereas Dr Chow asserts from his reconstruction and analysis of the image or images that it is 2.2mm. Whilst certainly expert evidence would be able to be called from the second defendant, as senior counsel for the plaintiff asserted, the second defendant would be prejudiced in her defence of the claim when she is not able to call evidence from Dr Wass to explain why she came to the view that 1.3mm was the appropriate reading. Associated with that are the other matters that Dr Chow says Dr Wass failed to do set out in those passages and which needed answering by her.

26. [81]

    Quite apart from Dr Wass’s death, it must be recalled what the High Court said in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [112]-[113]:

27. [82]

    To those remarks, there must be added a consideration of s 58 of the Civil Procedure Act. A significant consideration when determining what the dictates of justice are when a party is seeking to amend or obtain an indulgence, as is being sought here, is the way that party has conducted the litigation to date.

28. [83]

    An analysis of the orders made at various directions hearings shows that there have been repeated failures on the part of the plaintiff to comply with directions. These included answering particulars, service of reports as required by UCPR r 31.36, and compliance with service of liability and causation reports by a number of stipulated dates. It is also significant that on 15 February 2017 the plaintiff was given until 29 September 2017 to serve evidence in reply. Although Dr Sinosich’s report was served within the time stipulated by the Court on that occasion, the plaintiffs’ solicitor did not even retain Dr Chow until a date some five weeks subsequent to the date on which reply evidence was to be served. Of course, the evidence in Dr Chow’s reports cannot be regarded as reply evidence, not the least reason for which is that he was never provided with the report of Dr Sinosich, which was the stated purpose for his retainer, but that simply highlights how egregious is the fault in now serving new evidence in chief in these circumstances.

29. [84]

    No satisfactory explanation has been offered by the plaintiff for not having returned to Dr Bryce to respond to the matters raised by Dr Sinosich. Dr Bryce is the plaintiff’s principal expert obstetrician and gynaecologist. No explanation has been offered by the plaintiff for having retained a specialist scientist from the United Kingdom in the first instance when the plaintiff now seeks to justify retaining Dr Chow because of issues arising under s 5O of the Civil Liability Act 2002 (NSW), on the basis that it was peer professional practice in Australia that was relevant. It is clear that Dr Sinosich’s opinion was obtained to respond to Professor Spencer, yet the plaintiff wished to contend that she needed an Australian specialist to respond to Dr Sinosich.

30. [85]

    It is not without significance that these proceedings commenced almost five years ago and that they concern events which took place almost 15 years ago. On 4 October 2017 an order was made for mediation to take place before 30 March 2018. That did not occur, seemingly because Mr Potter retained Dr Chow and was pursuing a subpoena in relation to Dr Wass’s qualifications from the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. On 4 April 2018, the parties were directed to mediate by 30 September 2018. Arrangements were made for a mediation on 21 August 2018. On 25 July 2018, the mediation was vacated, seemingly because by that time Dr Chow’s reports had been served and an order was made for the filing of the present notice of motion.

31. [86]

    Reliance on the reports of Dr Chow and the further report of Professor Spencer would undoubtedly delay these proceedings to a significant degree. I accept that no hearing date has been fixed, although if the proceedings had been conducted expeditiously, such a hearing date would have been fixed. If these further reports could be relied on, it would be understandable that the Registrar would be reluctant to fix a hearing date until the extent of any further evidence in response became available.

32. [87]

    The history of the proceedings, including the repeated failures of the plaintiff to comply with directions and orders tells strongly against leave being given to rely on these reports, having regard to s 56 of the Civil Procedure Act.

33. [88]

    Senior counsel for the plaintiff submitted that the plaintiff should not be deprived of Dr Chow’s evidence by reason of the way the proceedings had been conducted by her lawyers, and that the interests of justice required that the evidence should now be permitted so that the real issues between the parties could be determined.

34. [89]

    In my opinion, what was said by the High Court in Aon at [112]-[113] is an answer to that. The further answer is that the interests of justice are not concerned only with the interests of one party but of all the parties to the proceedings.

Conclusion

1. [90]

   In my opinion, the plaintiff does not establish exceptional circumstances within the meaning of r 31.28. Had she done so, I would have rejected the application in the exercise of my discretion because of the prejudice flowing from the death of Dr Wass, and because of the history of the proceedings as earlier discussed. As I have noted, there is no objection to the plaintiff relying upon the answer to question 1 in Professor Spencer’s report of 1 September 2018, but the plaintiff’s application to rely on the reports of Dr Chow and the answers to questions 2 and 3 in that report of Professor Spencer should be refused.

2. [91]

   Accordingly, I make the following orders: