In the case of Kaye v Woods (No. 2) [2016] ACTSC 87, the 1st defendant (“1st D“) – the doctor – obtained a report from a medical expert, in August 2014. The report was not immediately provided to the 2nd defendant (“2nd D“) – the hospital – solicitors and by late October 2014, a solicitor for the 1st D knew the firm had the supplementary report and that the 2nd D hadn’t been served with that report. The 1st D’s solicitor had a conversation with the 2nd D’s solicitor where he conveyed that the 1st D did not intend to obtain another report from the medical expert (3 reports had previously been obtained and served in the proceedings), that no further expert reports were to be served on liability and causation and the reason for the 1st D’s decision for no further report being obtained and served was that it would adversely affect the 1st D’s case in relation to causation. What happened?
The matter was set down for final hearing on the 18 April 2016 and on Friday 15 April 2016, the 1st D, served the other parties with the fourth report of the medical expert, dated August 2014, which led to the proceedings not commencing as anticipated. The proceedings commenced with argument about whether leave should be granted to the 1st D to rely upon the report and what consequences should flow from the service of the report. In support of their application for leave, the 1st D relied upon an affidavit of the Law Firm Partner, dated 17 April 2016. The 1st D was required to produce ( as a result of a call, notice to produce and subpoena) documents relating to the decision to serve the fourth report. The 1st D claimed privilege in respect to these requested documents, however, changed their position on the next court occasion when the issue of privilege was to be agitated. The plaintiffs did not accept that contention and the judge agreed the issue had to be determined.
The plaintiff’s legal representatives submitted that there were acts that rendered a person liable to a ‘civil penalty’. They included:
- In October 2014, the 1st D’s solicitor informed the 2nd D’s solicitor there was no further expert report in existence
- A Partner in the 1st D’s law firm communicated with the plaintiff on the 15 April 2016 asserting that the failure to serve the report was an ‘oversight’
- Counsel representing the 1st D, in the presence of another solicitor employed by the 1st D, on the first day the matter was listed for hearing, made submissions that the service of the fourth report was an oversight.[Counsel had to recuse himself and another QC took the brief for further hearing on the 29 April 2016]
The plaintiff’s submitted that the following were liable to civil penalty, due to the above acts:
- 1st D: employed solicitor, in October 2014 (No.1 above)
- 1st D: Partner (No. 2 above)
- 1st D: employed solicitor in April 2016 (No. 3 above)
Findings
- Communication between 1st D solicitor (Solicitor 1) and 2nd D solicitor in October 2014, was false or misleading and known to be false or misleading at the time
- The statement by the Partner of the 1st D Law firm that lack of service was an ‘oversight’ was knowingly misleading, as there was active consideration by the Partner about whether to serve the report or not, up to the end of 2015.
- A letter by the Partner of 1st D Law firm (dated 14 April 2016) was evidence of a communication or a document prepared in furtherance of the act of providing a misleading explanation for the later service.
- The Affidavit of the Partner of the 1st D Law firm (dated 17 April 2016) suggested she was not involved and had no knowledge of the case and did not disclose her involvement with the case prior to 14 April 2016. The affidavit invited the drawing of inferences which did not accord with the facts and it was misleading.
- The 1st D’s employed solicitor (Solicitor 2), who acted as instructing solicitor on 18 April 2016, and had carriage of the matter, whilst under the supervision of the Partner, failed to obtain instructions to correct the misleading impression provided by the Partner’s affidavit or Counsel’s statements to the Court.
This case is worth reading with further instalments to unfold until finalisation!
The case provides a noteworthy example of what NOT to do, in this instance, when serving expert reports. However this case is much more than that as it impresses and calibrates what is proper conduct in life and law …….. that is; under all circumstances and situations being committed to candour and integrity, prior to any event, is required to be made, as a personal charter. These qualities must be the basis for all activities engaged in, as a human and lawyer.
If you are in need of a barrister and mediator who practices with the highest standards of professional ethics, advice, and service to instructing solicitors and their clients in family law (IVF and Surrogacy included), medical negligence and personal injury please contact Louise on (02) 9336 5399 or louise.mathias@sydneybarrister.net.au
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