Sripathi v Central Coast Local Health District

1. [1]

   By a second further Amended Statement of Claim (“the SFASC”) filed on 23 May 2023, Jedediah Sripathi (by his next friend Rishita Sripathi) (“the plaintiff”) brought a claim for a breach of a duty of care owed to the plaintiff by the Central Coast Local Health District (“the first defendant”) and, in the alternative, Dr Mythily Ramanathan (“the second defendant”).

2. [2]

   It was agreed that the plaintiff’s allegations as pleaded in the SFASC were two-tired. First, the plaintiff relied upon deficiencies in the anti-natal management of his mother and specifically alleged that in her clinical circumstances there were a number of risk factors which meant there was an increased prospect of shoulder dystocia occurring during labour. The plaintiff alleged that his mother should have been offered a pre-labour caesarean section which she did not receive.

3. [3]

   Secondly, the plaintiff based his claim upon the management of his mother’s labour and delivery. She was admitted to hospital late on 29 August 2015. It was alleged that the defendants’ failed to make an earlier call to the online consultant obstetrician for delivery, given the prolonged, late first stage and prolonged second stage of labour, in circumstances where the mother was already a poorly controlled gestational diabetic. In part, those allegations also relate to the management of the delivery once shoulder dystocia was encountered. The deficiencies and techniques relied upon by the plaintiff were those employed to overcome the shoulder dystocia. It was alleged that those deficiencies resulted in an 18-minute delay between the delivery of the plaintiff’s head and his body. The delay resulted in hypoxic ischaemic encephalopathy.

4. [4]

   Doctor Stephen Buckley, rehabilitation physician, in a report dated 18 February 2022, diagnosed the plaintiff with diplegic and ataxic type cerebral palsy with severe developmental (cognitive) impairment.

5. [5]

   In Sripathi v Central Coast Local Health District [2022] NSWSC 378 (“Sripathi No 1”), Harrison J (as his Honour then was) ordered the first defendant, to make an interim payment of $60,000 to the plaintiff. In the course of that judgment, his Honour stated at [33]-[35] and [45]-[46] as follows:

6. [6]

   Professor Michael O’Connor is a senior and experienced gynaecologist and obstetrician.

7. [7]

   By an Amended Notice of Motion filed on 5 December 2022, the plaintiff sought the following orders:

8. [8]

   At the hearing of the Amended Notice of Motion in the Courts duty list, the plaintiff did not seek Order 1. He was at that stage, 8 years of age. This judgment concerns the alternative order 1A.

Relevant principles

1. [9]

   Part 28, r 28.2 of the UCPR provides:

2. [10]

   Reference was made by the first defendant to the principles stated in the judgment of Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 (“Idoport”) at [7]:

3. [11]

   Hallen AsJ revisited these principles in 2010 in Southwell v Bennett [2010] NSWSC 1372 (“Southwell”). It was common ground that the principles stated by Hallen AsJ in Southwell at [15] properly stated the application and interpretation of r 28.2 as follows:

Submissions of the Parties

1. [12]

   The plaintiff submitted there should be a separate hearing on liability on two bases, namely:

   1. (1)

      The quantum of any damages to which the plaintiff may be entitled is not able to be determined for many years (“the first basis”);

   2. (2)

      The principal liability witness upon whom the plaintiff relies by then would be unavailable to give evidence in his case (“the second basis”).

2. [13]

   In the first case, the plaintiff referred to the affidavit of Gillian Potts sworn 10 October 2022 annexed to the report of Dr Ken MacLean, paediatric geneticist, dated 25 September 2022, where that medical expert stated, at p 38:

3. [14]

   In the second case, the plaintiff submitted that there is concern that the primary liability witness, Professor O’Connor, may not survive the time between now and the hearing. It was submitted that Professor O’Connor, who is now in his seventies, will, at the least, certainly be retired by the time of the hearing.

4. [15]

   A further issue arose from the defendant’s submissions in chief and in reply of the plaintiff regarding the overlapping of evidentiary issues of liability and issues of damages. The plaintiff submitted there is no overlapping of factual issues in this case between the issues of liability and the issues of damages: Binge-Grose by her Tutor Binge v State of New South Wales [2016] NSWSC 1228 (Harrison J (as his Honour then was) at [6]).

5. [16]

   The plaintiff made the following additional submissions as to why the question of liability should be heard first and separately:

   1. (1)

      The applicable principles for the separate trial of liability and damages in cases involving catastrophic injury to young children where the outcome will not be known for many years are set out in Thomas v Oakley [2003] NSWSC 1033, which Justice Campbell recently described as being “frequently cited” on such issues: Sukhova v Sydney Trains [2021] NSWSC 603 (at [8]).

   2. (2)

      The old law in relation to the reluctance of Courts to order separate trials of liability and damages in cases other than children’s cases must also be viewed in light of the observations made by Barr AJ in McLean by her tutor Nicole Shuttleworth v Marshall [2013] NSWSC 1400 where his Honour said, at [13]:

   3. (3)

      This is a case which will almost entirely depend on competing expert witnesses of medical background in relation to the management of the mother's pregnancy and the circumstances surrounding the delivery of the plaintiff. It is a case where the Court will be, in effect, relying upon medical experts to apply standards of the kind identified by s 50 of the Civil Liability Act 2002 (NSW).

   4. (4)

      The documentary evidence in the case of both the plaintiff and the defendants will be the medical records relating to the management of the pregnancy and the birth of the plaintiff. Both sides will rely upon the content of those records.

   5. (5)

      Both the plaintiff and defendants have put on extensive evidence on the issue of liability and hence, the case is ready for a trial on the issue of liability. Professor O’Connor is obviously available for that trial now.

   6. (6)

      The witnesses will be the mother of the plaintiff, the father of the plaintiff, Professor O’Connor and “perhaps some radiological evidence as to when the hypoxic brain injury occurred”.

   7. (7)

      With the exception of Dr Ramanathan, none of the defendant’s witnesses have seen the plaintiff since his birth and their evidence will be their expert medical opinion in relation to the standard of care in relation to the management of pregnancy and the birth of the plaintiff based on what they have read in the clinical notes and records.

   8. (8)

      The plaintiff does not know if the first defendant intends to call the registrar who failed to deliver the plaintiff or the staff specialist who did so after the plaintiff became hypoxic.

   9. (9)

      If Professor O’Connor is unavailable, the plaintiff will have to attempt to qualify another suitable qualified expert to look at the records going back to the birth of the plaintiff (in 2015) and put on very detailed and expensive expert evidence in relation to the standard of care shown at the relevant time. This would add significantly to the costs of the litigation, something which the authorities say should be avoided.

   10. (10)

       In Sripathi No 1, an order was made for an interim payment so that money would be available for the ongoing treatment needs of the plaintiff. As Harrison J (as his Honour then was) noted in that judgment, if an order for a separate hearing on liability is made and the plaintiff establishes liability against one or both defendant’s, the plaintiff will have an opportunity to make an application under s 82(3)(b) of the Civil Procedure Act 2005 (NSW), which relevantly provides that “if … the plaintiff has obtained judgment against the defendant for damages to be assessed” applications may be made for payments.

   11. (11)

       It is in the interests of all parties that if liability is determined in favour of the plaintiff that such a procedure can be utilised.

   12. (12)

       It is in the interests of the plaintiff to give him a better quality of life and it is in the interests of the defendants to ensure that he receives the treatment he needs as he grows so as to minimise the amount of damages that will ultimately be awarded.

6. [17]

   The first defendant maintained that there is an overlap of factual questions in this case between the questions of liability and the questions of damages, such that it is not an appropriate matter for a trial of liability only. The first defendant submitted that that overlap arises as follows:

   1. (1)

      The plaintiff’s claim in respect of the antenatal management is, it is accepted, one involving a clear delineation between questions related to causation and damages. In other words, if the Court accepts the plaintiff's proposition that because of particular risk factors, a caesarean section should have been offered in advance of labour, and would have been taken up, then shoulder dystocia would not have developed, there would been no 18-minute period between delivery of the head and delivery of the body and there would have been no hypoxic ischaemic encephalopathy.

   2. (2)

      However, it is the plaintiff’s case in respect of the management during labour and delivery where the potential overlap arises. Depending on what, if any, breach is made out with respect to the management during labour and delivery, the Court will need to consider what difference that would have made to the time at which delivery of the plaintiff's body would have been affected.

   3. (3)

      For instance, the Court may find that at some point during the allegedly prolonged second stage of labour, the consultant obstetrician should have been called in and if that had occurred, and appropriate techniques had been employed, the shoulder dystocia may have been overcome somewhat earlier. That may mean that instead of being 18 minutes between delivery of the head and the body, there was a somewhat shorter period. That then raises the issue of whether a shorter period of the head being on the perineum and a consequently shorter period of hypoxia, may have meant a lesser hypoxic ischaemic injury, with a knock-on effect in terms of the plaintiff’s hypoxic ischaemic encephalopathy and cerebral palsy.

   4. (4)

      The plaintiff's key experts on that issue are Dr Michael Harbord, paediatric neurologist and Dr Andrew McPhee, neonatologist. Dr Harbord’s report goes both to causation (whether a brain injury would have occurred with earlier delivery) and damages issues and it is therefore highly likely he will be called in any separate hearing in respect of liability and also, any later hearing on damages. Whilst Dr Harbord says that in shoulder dystocia, in effect, these injuries do not occur, he also states that if you have a shorter period of shoulder dystocia and a shorter period of hypoxic ischemic, that will require consideration of how that could have affected the plaintiff; what that might mean in terms of the plaintiff's cerebral palsy, his speech delay and his hyperactivity and autistic behaviour.

   5. (5)

      Dr McPhee’s report goes to liability issues only.

   6. (6)

      The risk in separating liability off for determination now is one of potentially inconsistent findings in the liability phase of the trial and the damages phase of the trial. It is emphasised that, as yet, no attempt has been made to frame the questions to be determined on liability.

   7. (7)

      To give but one theoretical example of how inconsistent findings might arise, in the liability phase, the Court might conclude, having heard evidence from Drs Harbord and McPhee, that with a lesser period of time between the delivery of the head and the delivery of the body, there would still be sufficient hypoxia for the plaintiff to develop physical injuries in the nature of spasticity of the limbs, but not cognitive impairment.

   8. (8)

      When Dr Harbord then gave evidence during the quantum phase of the trial, he could potentially express different views as to the consequences of the period of hypoxia in circumstances where Dr McPhee was not present and the questions for the quantum experts had been framed around the earlier findings. Thus, there would be the potential for inconsistent evidence and findings and multiple appeals.

   9. (9)

      Finally, it also seems very likely that the plaintiff's mother will give evidence both in any trial in respect of liability questions and any later trial on quantum question. In light of the pleading at paragraph [32](x), it is at least possible that credit issues will arise as to the claim that the plaintiff’s mother and potentially, other family members, made requests for a caesarean section during labour and that such requests were denied or ignored.

   10. (10)

       Again, that suggests that the superficial attractiveness of a separate trial on liability may not actually result in savings of time and costs. Obvious difficulties would arise if a credit finding were made in respect of the plaintiff’s mother in the liability phase of the hearing and she then gave evidence on quantum questions at a later trial, before a different judge.

7. [18]

   It was the first defendant’s position that that the preferable course is for the matter to be judicially case managed, with six monthly or yearly reviews for the next couple of years, with a view to then being listed for “an all-issues hearing.”

8. [19]

   It was agreed that the substantive proceedings involve allegations of negligence against the defendants in respect of the management of his mother's pregnancy and her labour/delivery on 30 August 2015. However, the first defendant indicated that a greater level of detail of the pleaded claim would be useful for the purposes of the plaintiff’s application, as follows:

   1. (1)

      In the SFASC, the plaintiff asserts that there were shortcomings in the antenatal management of his mother and specifically alleges that in her clinical circumstances, there were a number of risk factors which meant that there was an increased prospect of shoulder dystocia occurring during labour. In consequence, the plaintiff alleges that his mother should have been offered a pre-labour caesarean section.

   2. (2)

      Additionally, the plaintiff makes complaints in respect of the management of his mother’s labour and delivery. That is, after she was admitted to hospital late on 29 August 2015, it is alleged that an earlier call should have been made to the on-call consultant obstetrician for delivery because of a prolonged late first stage and prolonged second stage of labour in circumstances where the plaintiff’s mother was already a poorly controlled gestational diabetic. Further, the plaintiff makes complaints as to the first defendant's management of the labour and delivery. In part, those allegations relate to the management of the delivery once shoulder dystocia was encountered. The plaintiff thus alleges deficiencies in the techniques employed to overcome shoulder dystocia and alleges that as a result, there was a delay between delivery of his head and delivery of his body of 18 minutes. The plaintiff says that the delay between delivery of his head and body resulted in hypoxic ischaemic encephalopathy such that he is left with permanent brain injury and consequent cerebral palsy.

   3. (3)

      With respect to the first basis relied upon by the plaintiff, that the substantive basis upon which the plaintiff moves is the assertion that the quantum of any damages will not be capable of determination for many years, the first defendant submitted the following:

   4. (4)

      With respect to the second basis relied upon by the plaintiff to seek a separate hearing (that the plaintiff’s principal liability witness Professor O’Connor will be unavailable to give evidence in the case), the first defendant submitted the following:

9. [20]

   The second defendant opposed the application and took the same position as the first defendant.

10. [21]

    The plaintiff submitted the following in reply, in oral submissions:

    1. (1)

       The amendments to the Limitation Act 1969 (NSW) (“the Limitation Act”) mean that the parents have to take steps very early or otherwise the limitation period would operate against the plaintiff. The practical effect is that, quite often in these sorts of cases there will be separate trials, unless it is a frank, clear orthopaedic injury to a child. Trials should be heard separately where it is not possible to determine the long-term effects. This is such a case. There is no alternative than to have those matters determined separately from the question of damages.

    2. (2)

       According to Dr Harbord, what caused the plaintiff's cerebral palsy was that he had a heart attack. Hence, as a matter of fact, it does not matter what would have occurred if the cardiac arrest had been treated earlier. The child was not breathing, the cord was compressed, no oxygen was going to the child's body and as a result, the child had a heart attack and suffered severe brain damage.

    3. (3)

       Once a plaintiff has proven that, by reason of omission there was a breach of a duty of care, it is not legally relevant to inquire what might otherwise have occurred if the breach had not happened: Bennett v Minister of Community Welfare (1992) 176 CLR 408 (Gaudron J) (“Bennett”).

    4. (4)

       If the disability has been caused by the breach, that is the end of the inquiry: Bennett.

    5. (5)

       In terms of the matter relating to credibility, it is very rare for a Court to make a finding that someone was deliberately lying. It is not uncommon for a Court to make a finding that it does not accept the evidence of one witness or another, but it is difficult to see how, even if the Court had reservations about any aspect of the mother's evidence, it would in any way impede the Court's task in assessing damages.

CONSIDERATION

1. [22]

   The plaintiff, in reply, raised the difficulty faced by the parents due to amendments to the Limitation Act which has resulted in an increase in separate trials in these sorts of cases. The plaintiff appropriately relied in this respect on observations made by Barr AJ in McLean by her tutor Nicole Shuttleworth v Marshall [2013] NSWSC 1400, where his Honour said at [13]:

2. [23]

   So much may be acknowledged with respect to the application in this case.

3. [24]

   Nonetheless, without depreciating any of the above statements of principle, the following general propositions may be advanced:

   1. (1)

      Ordinarily, all questions or issues of fact and law in the proceedings should be determined at one time.

   2. (2)

      A party seeking an order that there be a determination of separate questions bears the onus of making good that proposition.

   3. (3)

      In discharging that onus and in resolving the application, it is necessary that there be precision in both the formulating of the question and specifying the facts upon which it is to be decided: Idoport (Einstein J at [7]).

   4. (4)

      It must be possible to see, clearly, that the separation would facilitate the quicker and cheaper resolution of the proceedings.

   5. (5)

      The party seeking to separate the proceedings must ultimately satisfy the Court that it would be just and convenient for that order to be made.

4. [25]

   There was no issue with the third proposed principle above (at [24](3)). The plaintiff is a child who is 8 years of age suffering from diplegic and ataxic type cerebral palsy, with severe developmental (cognitive) impairment. There are clearly defined issues as to liability as discussed at the outset of this judgment.

5. [26]

   Having given that introduction, I will now turn to the three primary issues relevant to the application under UCPR r 28.2.

6. [27]

   The parties agreed that at the present time, there is at least some degree of difficulty in assessing the level of the plaintiff’s abilities and consequent needs in order to determine the ultimate quantum of damages.

7. [28]

   There was a debate, at hearing, about the realistic length of time until a meaningful, evidence-based, estimation of the plaintiff’s long-term abilities and disabilities and consequent needs can be provided.

8. [29]

   The plaintiff submitted that it would be at least another 8-10 years before the plaintiffs’ damages are able to be appropriately assessed. The first defendant submitted it could be 5-6 years.

9. [30]

   The first defendant contended from Dr Buckley’s Report that “early adulthood” is the high point for the plaintiff as a yard stick as to when the quantum of damages could be properly assessed.

10. [31]

    The report of Dr Stephen Buckley, rehabilitation physician, of 22 August 2022 which was prepared with the benefit of reports by A/Professor Batchelor (15 March 2021), Dr Maclean (25 September 2020), Ms Mullen (4 November 2020), Ms Lindy Williams (22 July 2021) and Ms Burns (22 July 2021), indicated that there is a serious difficult in predicting the plaintiff’s future care requirements and employability. Dr Buckley stated that “… Jedidiah will always be unemployable on the open employment market. Assessment for suitability for sheltered type employment will be deferred until he reaches the age of 18.” [1]

11. [32]

    Dr Buckley stated the following in his report:

12. [33]

    Dr Buckley explained that there is uncertainty as to the plaintiff’s future as to care needs and employability. As to the time required to move beyond guesses, Dr Buckley referred to “early adulthood.” This is a vague term which only reinforces, in my view, the imprecision with which those informing the Court can provide a timeline as to when the quantum of damages can be accurately assessed. It would seem to suggest well in excess of 5 years.

13. [34]

    Dr Batchelor, clinical neuropsychologist, in her report of 15 March 2021 opined that the plaintiff is too young to provide a description of his current disabilities. [3]

14. [35]

    “Too young” is, again, an appropriately vague metric. In written submissions, the first defendant indicated that they were seeking instructions to obtain their own clinical neurological expert and hence, that evidence is not before the Court for the purposes of this judgment.

15. [36]

    The report of Dr Ken Maclean dated 25 September 2020 identified a series of conditions from which the plaintiff suffered due to his traumatic birth however indicated that the prognosis of these problems are unable to be determined at this time due to young age, transitional developmental status given he is a preschool aged child, the inherent complexities of the neurodevelopmental presentation with a divergence between everyday language and communication difficulties vis-à-vis the insights into higher order cognitive/mental abilities. [4] As above, the report also stated that it “is not possible or appropriate to predict long term needs, educational attainment, employment or vocational outcomes at this stage, beyond identifying the need for review and reappraisal.” [5]

16. [37]

    In his report of 7 May 2020, Professor O’Connor stated that, “the costs of such interventions [with respect to treatment for cerebral palsy] would be difficult for me to estimate however at a general level the annual costs of delivering holistic care to a child suffering from severe cerebral palsy are likely to be well in excess of $145,000 per annum.” [6]

17. [38]

    One of the first defendant’s experts, Ms Mullen, concluded the following: [7]

18. [39]

    Ms Mullen works within the confined field of occupational therapy and only speaks to the “likelihood” of the plaintiff’s therapeutic care needs after the age of 18.

19. [40]

    The evidence of the first defendant in relation to the report of Dr Tofts, of 28 November 2020, emphasises the difficulty in assessing the plaintiff’s abilities. Dr Tofts found that the plaintiff would not be able to work in a manual job and indicated that findings about the plaintiff’s capacity for work would also be impacted by whether or not he develops the capacity to drive a modified vehicle and would therefore be independent with transport. These assessments are also attended by uncertainty at the time.

20. [41]

    After a review of the evidence, I accept the plaintiff’s contention that the quantum of damages to which the plaintiff may be entitled cannot presently be identified with any degree of accuracy.

21. [42]

    The material before the Court suggests that there is little opportunity to be precise about how long it will be until the quantum of damages is able to be properly assessed for a considerable period of time. The plaintiff submitted it would be between 8-10 years. The first defendant submitted it could be 5 or 6. At this stage, the plaintiff’s estimates seem more realistic.

22. [43]

    The first defendant agreed that the plaintiff’s claim with respect to antenatal management involves a clear delineation between causation and damages issues.

23. [44]

    After reviewing the parties’ submissions and the evidence before the Court, I agree with the submission made by the first defendant that there is a potential overlap between liability and damages with respect to the management of labour and delivery (of the plaintiff).

24. [45]

    Dr Harbord, who is a key expert in the plaintiff’s case, issued a report of 12 February 2021 which goes to both causation (at [41]-[49]) (whether a brain injury would have occurred with earlier delivery) and also to damages (at [52]-[53]). Dr McPhee’s report of 15 June 2022 (another key expert witness) goes to issues of liability only.

25. [46]

    I do not understand the first defendant’s contention that this is an example which could potentially lead to inconsistent findings if there were separate trials for liability and damage. It was contended at the hearing that Drs Harbord and McPhee could give incongruous evidence regarding the consequence of the period of time between the delivery of the head and the body of the plaintiff for limb spasticity and cognitive impairment at the hearing for liability. Hence, if Dr Harbord were to give his evidence at the hearing for damages, without an adversarial, this could lead to inconsistent evidence and multiple appeals.

26. [47]

    Nonetheless, if there are to be separate hearings, the questions as to liability will be resolved at the hearing regarding liability. There would seem to be a remote prospect of the re-examination of evidence relevant to liability at the hearing for damages. The plaintiff correctly identified this consideration in reply, at the hearing. If a breach of a duty of care is established at the hearing for liability, evidence related to breach would no longer be admissible at a hearing for damages. If the disability has been caused by the breach, that is the end of that inquiry.

27. [48]

    Further, Dr Harbord is the only medico whose evidence the Court has been pointed to which represents a potential problem for an overlap of issues of liability and damages. The first defendant has only brought the Court’s attention to two paragraphs within Dr Harbord’s report which go to the issue of damages ([52] and [53]). This sliver of evidence which represents a potential overlap in factual issues with respect to liability and damages is not enough, in my view, to be a significant obstacle prohibiting separate hearings.

28. [49]

    Regarding the suggestion by the first defendant that credit issues could arise as to the claim that the plaintiff’s mother and potentially, other family members, made requests for a caesarean section during labour and that such requests were denied or ignored, it is pure speculation at this stage.

29. [50]

    Although not strictly necessary to continue, I will briefly address the plaintiff’s concerns about the availability of Professor O’Connor to give evidence at an all-issues trial.

30. [51]

    The plaintiff contended that if it is 8-10 years before the quantum of damages available to the plaintiff can be accurately assessed, that there is a risk that the primary expert witness, Professor O’Connor, would be unavailable, given he may be retired or in the plaintiff’s submission “pushing up the daisies in 10 years’ time.” [8]

31. [52]

    The concern was that if Professor O’Connor was not available to be a witness the plaintiff would have to duplicate all the cost and expenses incurred to date in relation to the expert evidence he has provided.

32. [53]

    In my view, the plaintiff’s submission that Professor O’Connor will be unavailable to give evidence in ten years’ time is somewhat overblown. It is based on a rather obscure piece of evidence given by a staff member at his medical rooms. Even if he is retired, Professor O’Connor will be able to give evidence at a hearing.

33. [54]

    In Sripathi No 1, Harrison J (as his Honour then was) was satisfied in the circumstances that, if the proceedings went to hearing, the plaintiff would obtain a judgment for damages against the defendant. There was no dispute, in those proceedings, that the damages (if recovered) would be substantial. There is nothing in these proceedings to say any differently.

34. [55]

    On the material before the Court and with the benefit of Harrison J’s judgment, I am similarly satisfied that the plaintiff is likely to succeed in obtaining a judgment for damages against the first defendant.

35. [56]

    One clear benefit of separate hearings is that, if the plaintiff does establish liability, it is possible that he will be eligible for another interim payment under s 82 of the Civil Procedure Act 2002 (NSW). Given the severity of the plaintiff’s disability and the extra care and support he currently requires, it is in the interests of justice that those issues be decided, at the earliest available time.

36. [57]

    Further, I consider the issues as to liability are very clearly defined. The hearing of the separate question of liability will, in my view, facilitate the quicker and cheaper resolution of the proceedings.

CONCLUSION

1. [58]

   In the circumstances, I have determined that there shall be a separate hearing on the issue of liability only, pursuant to Pt 28 r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW).

2. [59]

   There was no dispute that costs should be in the cause.

3. [60]

   The parties should bring in Short Minutes of Order reflecting this judgment by 4.00pm on Monday 18 March 2024.