Not infrequently, in civil litigation, a plaintiff or defendant – bereft of the ability to adduce direct evidence of the making of a statement or the engagement in certain conduct – pleads the usual practice of that party to make such statement or engage in such conduct.

Ordinarily such evidence would be adduced by oral testimony of those engaged in such practice.  In turn the opposing party would seek to impugn the adoption of such practice, including – if possible – of occasions of non-adherence to such practice. The decision in McLure v Lam [2025] NSWSC 1272 (25 October 2025) is an example of a plaintiff – confronting a usual practice plea by a defendant in a medical negligence case – seeking to elicit documents in respect of other instances of treatment for similar procedures, so as to discern whether the pleaded practice was adopted.  In that case the documents were sought by subpoena – as is the practice in New South Wales – but in Queensland the likely course would be that the applying party would make application for further and better disclosure of documents from the pleading party, albeit by subpoena in the event the relevant documents are held by a non-party. Bill Madden – in his excellent ‘Bill Madden’s WordPress’ online publication – has written a useful case note concerning the decision of Garling J in McLure. That appears below. Bill addresses not just by reference to relevance of the pleaded issues but also by reference to – on the facts of that case – a contention of oppression obviating such disclosure. Hearsay thanks Bill for permission to publish the same.

McClure v Lam [2025] NSWSC 1272

This litigation included a focus on whether the defendant failed to give appropriate advice with respect to the plaintiff’s condition, including advice that she should accept a conservative line of treatment for her condition, rather than to undergo surgery. The defendant served an evidentiary statement stating that he had no independent recollection of any discussion with the plaintiff, so referred to his asserted usual practice.

The plaintiff served a subpoena seeking patient files in respect of similar procedures (TVT, Elevate and prolapse procedures) which the defendant sought to set aside. In the interlocutory consideration of that application there were two issues.

Legitimate forensic purpose

The defendant’s submission that the subpoena had no legitimate forensic purpose was rejected. The court said at [13]:

Given that the defendant relies upon his usual practice as a basis for describing, in his evidence, what occurred, I am satisfied that the subpoenas which seek to test the existence of a usual practice and what the content of that usual practice was, by reference to the clinical records of other patients, demonstrates a legitimate forensic purpose. That is the more so because there is a real factual issue in this case between the plaintiff’s account of what occurred when she saw the defendant as to what she was actually told, when, and in what detail, and the defendant’s statement.

Oppression

The unchallenged evidence of the defendant’s solicitor was that there is no search function (in the software used by the defendant) which can automatically identify the symptom, or symptoms, or condition with which a patient presented to the defendant, or the nature of advice which was provided to each defendant. Nor, apparently, was there any search function that, of itself and without more, can automatically identify whether or not a particular mesh, known as “Elevate Mesh”, was in fact used in the vaginal repair procedure. However, the evidence was that the practice management software is capable of identifying patients who have been the subject of a procedure described by a particular Medicare Item Number. It was possible to identify 467 patients who had been subjected to a repair for pelvic organ prolapse in procedures undertaken by the defendant using, or which could potentially involve the use of, Elevate Mesh.

Leaving aside those patients who may be identified in that way, by reference to Medicare item numbers, the evidence was that there would need to be a manual review of the records of 1,338 patients who had engaged in 2,299 consultations in the period during which advice may have been given about procedures or consultations in which the particular procedures were discussed.

The court held at [24]:

I cannot be satisfied, presently, that the task could be undertaken without some degree of oppression, given the breadth of the documents which are sought. Put differently, I am satisfied that, based on the terms of the subpoena presently pressed, including the use of the phrase “prolapse procedures”, it would not be anything other than oppressive.

The court went on to suggest that a subpoena in different terms (framed by reference to a date range and certain Medicare numbers) would not be oppressive. The current subpoena was set aside, with the matter adjourned for later consideration should the plaintiff choose to issue a differently worded subpoena.

Ahluwalia v. Ahluwalia, 2023 ONCA 476 (on COA decisions)

The Court of Appeal for Ontario was recently required to consider an appeal from a trial judge’s decision which had recognised a new tort of family violence ([20]). The issues on appeal were:

1. Did the trial judge err by including a tort claim in a family law action?
2. Did the trial judge err by creating a new tort?
3. Did the trial judge err in fashioning the tort of family violence?
4. Should this court recognize the tort of coercive control?
5. Did the trial judge err in assessing damages?
6. What is the procedure for a court considering a tort claim in a family law action?

The Court of Appeal held that no jurisprudence was relied on by either the trial judge or by the respondent to support the proposition that a pattern of tortious conduct is not captured by the existing torts of battery, assault, and intentional infliction of emotional distress. Similarly, no jurisprudence is cited to support the trial judge’s concern that existing torts are too narrowly focused to capture these dynamics in a relationship ([73]).

The trial judge here recognized the ability of existing torts to address the harm when she found that liability under the existing torts had in fact been established. Accordingly, the trial judge erred in creating a new tort which was not required ([93]).

The Court of Appeal went on to say that by adopting the definition of family violence created for the specific purpose of post-separation parenting plans and using it to create a new cause of action, the trial judge ignored the clear intention of the legislature. This was an error. ([102]).

The proposed tort of coercive control substantially overlaps with the tort of intentional infliction of emotional distress. The major change in the proposed new tort would be to eliminate the requirement that there be visible and provable injuries. The trial judge accepted that injuries had been proven and found the appellant here liable for intentional infliction of emotional distress. Since the issue did not arise in this case, it would be inappropriate to make a significant change to the law based on a hypothetical. ([112]). In addition, the elimination of the requirement to prove harm would be a significant change to the law. ([113]).

[BillMaddensWordpress #2146]

The below post by Bill Madden appeared on Bill Madden’s WordPress (link here) a blog specialising in medical law, abuse law, NDIS & civil liability and has been reprinted with the author’s permission. The decision noted is on appeal.

New Aim Pty ltd v Leung [2022] FCA 722 (Federal Court of Australia website)

This litigation was in respect of a claim that three persons reached their equitable obligations not to reveal or use confidential information acquired during the course of their employment, breached their statutory obligations under s 183 of the Corporations Act 2001 (Cth) not to improperly use information and breached their individual employment contracts by failing to maintain the confidentiality of the information of their employer.

Of interest is the discussion regarding an expert report, which had apparently been prepared within 24 hours of receipt of an instruction letter from the solicitors who retained her ([47]). Two or three draft reports had been submitted ([48]) and the witness was cross examined as to whether the solicitors suggested to her that she should make changes to her draft report. Eventually the witness was asked a direct question as to who drafted the version of her report which was attached to her witness statement and she ultimately conceded that “but if you say every words of the sentence is exactly 100 per cent written by me, no”  ([49]).

The primary judge observed at [61], by reference to he reasoning of Lindgren J in Harrington-Smith on Behalf of the Wongatha People v Western Australia (No 7) (2003) 13 FCR 424; [2003] FCA 893:

In some circumstances, the fact that an expert witness may agree with a form of words for the expression of the expert’s opinion which are put to the expert in an admissible form, may not detract from the independence of the expert and the reliability of the opinion expressed. 

And at [71]:

… It may be perfectly appropriate, such as in cases where an expert is unfamiliar with the form and content requirements for an expert opinion report, for that document to be settled in an admissible form by someone else, but then in my opinion, only if that fact is disclosed in the report. 

The passage at [69] is of interest:

Whilst there may not be an ethical difficulty if the lawyer drafts the report based on instructions from the expert, as this case demonstrates proceeding in that way poses the serious risk of compromising the independence of the expert and of undermining the value of the opinion. Further, this is clearly a case which in my opinion substantially departs from the proper role of lawyers who engage independent experts in legal proceedings.

And at [76]:

What occurred in this case went far beyond the permissible scope of involvement of lawyers who retain an independent expert in order to give evidence in a proceeding. I reject the submission of counsel for the applicant that I should accept Ms Chen as an independent expert witness and that “the process by which her evidence was prepared is unremarkable.” For the reasons I have given, it most certainly was not. Even if in some circumstances it is proper for lawyers to draft an independent expert witness statement for consideration by the putative expert, that fact must be disclosed in the expert report conformably with the obligations that the expert assumes in accordance with the Expert Evidence Practice Note of this Court and the Harmonised Expert Witness Code of Conduct. And then, all correspondence relating to the manner of preparation of the report should be disclosed and, to the extent that oral advice is conveyed to the expert, the substance should be documented and disclosed. What occurred in this case should not be repeated.

All opinions in the expert’s report were rejected ([77]). Nor was the primary judge willing to make any finding of fact based on the oral evidence of the expert ([78]).