AA v Kesby  NSWSC 1711 (available on Caselaw) saw interlocutory orders made in respect of two notices of motion, dealing with issues in the leadup to a final hearing of the claim.
The Court had previously made a pseudonym type order under the Court Suppression and Non Publication Orders Act 2010 (NSW).
The present judgment dealt with orders sought by the plaintiffs in respect of:
- Amendment to the statement of claim so as to include claims under the Australian Consumer Law pleading different legal characterisations of the facts already alleged (granted, );
- The number of breach of duty experts which the defendant may rely upon, with the Court commenting (at ) that four experts in the circumstances involved an element of unnecessary duplication with the potential for increased expense and time, even when evidence is given concurrently (hence the defendant was limited to calling evidence from no more than two of the relevant experts (at ));
- An issue in respect of a joint breach of duty conclave as to differing areas of expertise of the participants (direction made that there be a joint experts conference in two parts (at );
- An issue in respect of a causation conclave for which questions focused on statistics on termination of pregnancy (no direction made for conclave (at ))
The defendant made an application for a declaration that the defendant’s lawyers be permitted to interview three of the first plaintiff’s former treating doctors on specified topics when it was common ground (at ) that the plaintiffs had not agreed to waive any duty of confidentiality owed to them by the medical practitioners in question. There was no evidence that the defendant’s various experts had been unable to give reports or been unable to express a suitably unqualified opinion because of the lack of the answers to the questions proposed to be put to the three doctors (at ) nor was there any evidence from the defendant’s solicitors as to any inability to prepare the case for trial without access to the information covered by the questions proposed for the interviews (at ).
The Court held at  that since the relevant information may be obtained by subpoenaing (the three doctors) or by calling them or other persons to give evidence at the hearing, the defendant had not established a prima facie case that there actually is relevant information that is being kept “secret” from him, in the sense that it cannot be obtained by legitimate, litigious processes in the context of these proceedings.
Other issues were noted by the Court, including (at 143]) that no application was made for a stay and interviews prior to or at the time of the hearing date being fixed. The Court also noted (at ) that even if a stay were granted, it is most unlikely that any interviews would actually take place as there was no legal obligation on the doctors to do so and at least one had expressed unwillingness. The medical practitioners affected by the proposed declarations had not been joined nor have they been given the opportunity to present such evidence and make such submissions as they may have wished in relation to the declarations (at ).
At  the Court said:
This is not a case, as was contended by the defendant, in which requiring … (the doctors)… to give evidence without a prior interview would be akin to trial by ambush. The authorities the defendant relied on in written submissions, Nowlan v Marston Transport Pty Ltd (2001) 53 NSWLR 116;  NSWCA 346 and Sydney South West Area Health Service v MD (2009) 260 ALR 702;  NSWCA 343 at , make clear that “trial by ambush” relates essentially to circumstances in which a party may be surprised by issues raised at trial for the first time. It is not primarily concerned with evidence adduced at trial in relation to issues which have been disclosed well prior to any final hearing and which all parties have had the opportunity to consider and address in evidence. In the present case, the issues have been identified for some time and there is unlikely to be any ambush involved in the final hearing of the matter. That a party in litigation may call or cross-examine a witness and not know precisely what their evidence will be is not anomalous or unusual and is not a basis for making the orders sought by the defendant in this case.
And commented at :
Indeed, if the defendant’s submissions in this regard were correct, it would run perilously close to accepting propositions that: in order to have a fair trial, every party must have the opportunity prior to hearing to interview any potential witness who is likely to have relevant information, not otherwise available, in order to establish whether the potential witness’s answers would assist the party’s case; and, that a stay may be granted until such interviews are permitted to take place. If such an approach were adopted, the potential adverse consequences for the orderly and timely determination of proceedings would be significant.