Crawley v Rolley & Ors [2000] QSC 139

SUPREME COURT OF QUEENSLAND CITATION: Crawley v Rolley & Ors [2000] QSC 139 Tanner v Rolley & Ors [2000] QSC 139 PARTIES: SAMANTHA CRAWLEY (plaintiff) v DR JD ROLLEY (first defendant) DR N NGENDA (second defendant) THE STATE OF QUEENSLAND (third defendant) ENDOVASIVE PTY LTD (fourth defendant) FEMCARE LTD (fifth defendant) and LISA KATHERINE TANNER (plaintiff) v DR JD ROLLEY (first defendant) DR N NGENDA (second defendant) THE STATE OF QUEENSLAND (third defendant) ENDOVASIVE PTY LTD (fourth defendant) FEMCARE LTD (fifth defendant) FILE NO/S: S8418 of 1999 S8417 of 1999 DIVISION: Trial Division DELIVERED ON: 16 May 2000 DELIVERED AT: Brisbane HEARING DATE: 8 May 2000 JUDGE: White J -- 1 of 14 -- 2 ORDER: 1. Dismiss the application by the fifth defendant for judgment against the plaintiff in each action. 2. Dismiss the application by the fifth defendant for judgment against the first, second and third defendants in their contribution proceedings against the fifth defendant. CATCHWORDS: Application by fifth defendant (manufacturer) for summary judgment - r 293 Uniform Civil Procedure Rules - medical negligence - manufacturer’s liability - test to be applied. Uniform Civil Procedure Rules, r 293 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Olympic Airways SA v Nelson Wheeler Arnold and Mann Judd Associates Pty Ltd [1998] VSC 828 Shipard v Motor Accident Commission (1997) 70 SASR 240 Wilson v Union Insurance Co (1992) 112 FLR 166 COUNSEL: P McMurdo QC, with L Kelly for the applicant/fifth defendant G Gibson QC, with J McDougall for the respondents/first, second and third defendants CE Just (solicitor) for the respondent/fourth defendant GR Mullins for the respondents/plaintiffs in both actions SOLICITORS: Freehill, Hollingdale and Page for the applicant/fifth defendant Corrs Chambers Westgarth for the respondents/first, second and third defendants Sparke Helmore for the fourth respondent/defendant McInnes Wilson for the respondents/plaintiffs in both actions [1] WHITE J: There are two applications before the court in which the fifth defendant (“Femcare Ltd”) seeks summary judgment against the plaintiff in each of two actions pursuant to Rule 293 of the Uniform Civil Procedure Rules. The relevant subrule (r 293(2)(b)) provides that a defendant may at any time apply to the court for judgment if the court is satisfied that the defendant has a defence to the proceedings. The plaintiffs are Samantha Crawley and Lisa Tanner respectively. Each plaintiff underwent a sterilisation procedure on 5 August 1997 and became pregnant subsequently and was delivered of a child, on 12 September 1998 in the case of Ms Tanner, and on 28 March 1999 in the case of Ms Crawley. Each seeks damages. [2] Each plaintiff sues the two doctors who carried out the procedure, the hospital which employed them, the supplier of the product used in the procedure and the -- 2 of 14 -- 3 manufacturer of the product. In each case the first defendant (“Dr J Rolley”) was a consultant gynaecologist and the second defendant (“Dr N Ngenda”) a gynaecologist, employed by the Royal Women’s Hospital Brisbane, in respect of which the State of Queensland is the third defendant (“the Hospital”). [3] Femcare is the manufacturer of a clip used in the sterilisation of women known as the Filshie Clip (after the name of its inventor). The clip is applied to each of the two fallopian tubes by means of an applicator manufactured by Femcare and introduced into the woman’s body by means of a laparoscopic surgical technique using equipment supplied by others. The clip is placed around each tube and then closed. This has the effect of occluding the tube and preventing sperm coming into contact with an egg. [4] The plaintiff alleges that the fourth defendant (“Endovasive”) was the manufacturer or supplier of the clip and applicator. It seems to be common ground, however, that it was not the manufacturer. In its defence it pleads that it purchased the distributorship for the Filshie products in November 1993 from Bard Biospectrum which is not a party to the action, and has no access to records prior to that date and is unable to say if the applicator(s) and clips used in the procedures were supplied by it. The first, second and third defendants plead that the applicators and clips used in the procedures were purchased from Queensland Surgical Pty Ltd, not a party. [5] The pleadings have not closed. The first, second and third defendants (the doctors and the Hospital) and Endovasive have filed defences. Femcare has not. The first, second and third defendants have sought contribution from Femcare based on the plaintiffs’ allegations against it in the statements of claim. Femcare also seeks judgment on those notices which will stand or fall with the outcome of these applications for judgment against each plaintiff. [6] There has been discovery by the plaintiffs. Dr R Adam examined each woman after conception for diagnostic laparoscopy and re-sterilisation. A video of the procedure was taken and Dr Adam prepared a report for the plaintiffs’ solicitors. The reports and videos have been inspected by Femcare’s solicitors and tended on these applications. Not surprisingly, since no defence has been filed, there has been no disclosure given by Femcare. Femcare has obtained expert reports from Dr JD Keeping and Professor MJ Bennett about the procedures, based upon their viewing of the video taken under Dr Adam’s direction. [7] Mr McMurdo QC for Femcare submitted that each case, on its facts as pleaded and taking into account the supplementary affidavit material, must fail against Femcare. The facts are substantially the same in each action save that Femcare contends, and it seems to be so on the present material, that the case in negligence against the first, second and third defendants appears stronger in the Crawley action. [8] The scheme of the statement of claim in each action in respect of Femcare relevant to these applications are allegations that Femcare • supplied Filshie Clips and applicators either to the Hospital direct or via Endovasive and thereafter provided service and information in respect thereto; -- 3 of 14 -- 4 • knew, inter alia, that the applicators required servicing or calibration once every 100 uses, or once a year, whichever was the earliest; • knew that the applicator and Filshie Clip would not or may not attach effectively or securely to a fallopian tube should the applicator not be serviced or calibrated as described and that the failure rate was much higher when the clips were applied with an applicator which had not been serviced or calibrated as described above; • did not advise the first, second or third defendants of these matters; • owed a duty of care to the plaintiff. [9] The failure of the surgery and subsequent pregnancy was allegedly caused by the conduct of Femcare in • failing to advise the first, second and/or third defendants of the necessity to calibrate or service the applicator regularly as described; • failing to advise the first, second and/or third defendants that the applicator or Filshie Clip may fail to attach adequately to the fallopian tube if not so serviced or calibrated; • failing to advise the first, second, third defendants and/or plaintiff that the failure of the Filshie Clip was higher than five in one thousand, in particular in circumstances where the applicator had not been serviced or calibrated as described; and • failing to conduct research and adequately monitor the failure rate of Filshie Clips. The conduct alleged against the first, second and/or third defendants (see below) was as a consequence, in part, of the failure of Endovasive and Femcare to advise and conduct appropriate research. [10] Each plaintiff alleges that the failure rate of the applicator and clip was higher than five in one thousand and the first, second, third and/or fourth defendants failed to so advise each plaintiff prior to the surgery and not to do so was negligent. [11] Each plaintiff alleges that had she been aware subsequent to the surgery that the failure rate was higher than five in one thousand she and her husband would have undertaken a further sterilisation procedure or continued to used other forms of contraception. [12] The allegations against the first, second and third defendants, as relevant, are that the first and second defendants counselled and advised each plaintiff as to an appropriate method of female sterilisation in her circumstances and that the prospect of becoming pregnant following the surgery was two in one thousand. In reliance on this information each plaintiff underwent sterilisation by the application of Filshie Clips using an applicator and clips supplied by the fourth and/or fifth defendant which had not been serviced or calibrated as described and were -- 4 of 14 -- 5 otherwise defective and which did not function properly and failed to attach the clips effectively to each plaintiff’s fallopian tubes. [13] The first, second and third defendants were allegedly negligent in as much as • the advice was wrong and each plaintiff ought to have been warned that the failure rate of the Filshie Clip was greater than two in one thousand; • the first and second defendants ought to have advised each plaintiff of other less risky procedures. (In the case of Crawley there is a further allegation that the first and second defendants failed to inform her that the procedure was not a “cut and tie” procedure). [14] Each plaintiff alleges that had she been made aware of these matters she would not have undertaken the surgery and would have sought another form of sterilisation and would have continued to use other forms of contraception. [15] Further and alternatively the surgery is alleged to have failed giving rise to the subsequent pregnancy because of the negligence of the first and second defendants in the conduct of the surgery. The particulars are • failing to secure the Filshie Clips adequately to the fallopian tubes; • placing the Filshie Clip across the broad portion of each plaintiff’s fallopian tubes so that they ran a high risk of falling off; • failing to calibrate or service the applicator at all or in accordance with the manufacturer/supplier’s instructions; • placing the clips across the broad portion of each plaintiff’s fallopian tube in breach of the instructions of Femcare. [16] In broad terms there are three relevant allegations made by each plaintiff: • the incorrect placing of the Filshie Clip; • the applicator used to apply the clips was not appropriately serviced and calibrated; • an incorrect risk factor was given to each plaintiff. [17] Mr McMurdo submitted that the medical evidence is to the effect that the failure of the sterilisation procedures was due to the negligent performance of each procedure by the first and second defendants. This would leave no causative role for the calibration allegation against Femcare. [18] The medical evidence adduced on this application relevant to the Crawley action is as follows -- 5 of 14 -- 6 [19] Dr R Adam “Neither Filshie clip had been applied correctly to the tube. … I did remove the right clip, but the left clip was buried in the mesosalpinx and was left in situ” (letter 2 August 1999). “In the case of the left fallopian of Samantha Crawley, there was clearly no filshie clip attached at the time of my inspection. It would appear that the fallopian tube was not occluded and was a possible source of Ms Crowley’s fertilisation. The right clip appeared to be placed parallel to the tube. It is not possible to conclude that the right fallopian tube was fully occluded. The clip on the right side appears to have been closed correctly, although not over the tube. Consequently, it is not possible to say conclusively that Ms Crawley was impregnated through the open left fallopian tube” (letter 5 May 2000). Professor MJ Bennett “For the sake of completeness I note that Dr Adam says that ‘neither Filshie clip had been applied correctly to the tube’. On the basis of my review of the video, it seems to me that the right Fallopian tube was probably appropriately occluded by this Filshie clip. In my experience, it is not uncommon for a properly applied Filshie clip to cause a necrosis and subsequent disintegration of the Fallopian tube at the sight [sic] of its application. My interpretation of the right Fallopian tube is that that is what happened and that the right tube was occluded. However, in order to achieve the objective of sterilisation, the Isthmic portion of both Fallopian tubes needs to be adequately occluded and in Ms Crawley’s instance, it is my view that the Filshie clip was not applied to the left Fallopian tube at all” (letter 1 May 2000) Dr JD Keeping “On the left side there is a clip attached to a fold in the broad ligament. The tube looks pristine and untouched. The clip is firmly closed, and the tissue of the broad ligament is grouped within it. The clip has been applied to another structure, a fold in the broad ligament, leaving the tube unscathed. It would not be possible for the clip to have been properly applied to the tube, to have subsequently removed itself from the tube leaving no scarring whatsoever and then to have reapplied itself to the broad ligament. The tube is in fact gripping the broad ligament, not merely adherent to it. On the right side I think it is possible, even probable that the -- 6 of 14 -- 7 clip has been applied in the right place, ie on the isthmic portion of the tube. Looking at the video I find it difficult to be 100 percent sure of that but it would look to be so. If that was so then the clip on the right side may have been correctly applied but that on the left side was applied to the broad ligament leaving the tube unscathed and so a pregnancy has occurred” (exhibit 2 to the affidavit of JD Keeping filed 4 May 2000). Dr N Ngenda (second defendant) “It is my opinion from viewing the video that the filshie clip is applied correctly to the isthmic portion of the right fallopian tube. It is difficult to determine from the video the exact location of the filshie clip on the left side however it appears to be adjacent to the left fallopian tube” (paragraph 7 of Dr Ngenda’s affidavit filed by leave on 8 May 2000). Dr J Rolley provided no evidence in respect of this plaintiff. [20] The medical evidence adduced on this application relevant to the Tanner action is as follows: Dr R Adam “Both Filshie clips had been placed inappropriately across the broad portion of her Fallopian tube. They had both fallen off and were left attached by a very thin thread of tissue. I retrieved both clips … ” (letter 27 July 1999). “I agree with the opinions of Dr Keeping and Dr Bennett that the positioning of the clips on the ampullary ends of the Fallopian tubes at the time of the original laparoscopy would not be the preferred position. There would be a significant risk that the Fallopian tubes would not be occluded. It is, however, possible that a successful occlusion may occur with the clips placed in that position, depending on the particular circumstances. There would be a significant risk, however, that occlusion would not occur. That risk would be further significantly increased should complete closure and security of the clips not be effected by reason of operator of applicator error. Neither clip recovered from Mrs Tanner had been closed correctly. It is likely that the failed sterilisation occurred because of the inappropriate placement of the clips or a combination of inappropriate placement and a failure to obtain complete closure of the clips” (letter 5 May 2000). -- 7 of 14 -- 8 Professor MJ Bennett “I agree entirely with Dr Adam that both the clips were placed across the Ampullary portion of the Fallopian tubes. They were placed on the broad ends of Fallopian tubes and clearly did not occlude the lumen of either tube completely. … Accordingly, it follows that the Filshie clips seen in Dr Adam’s video were incorrectly placed on the Ampullary ends of the Fallopian tubes at the time of original Laparoscopy in August 1997. This is in my view the reason for the failed sterilisation” (letter 1 May 2000). Dr JD Keeping “Both of the clips are closed but both appear to have been applied some three-quarters of the way along the tube towards the outer end on the ampullary part of the tube. From the appearance of both tubes I think it is obvious that the clips were applied at that site and have not in some way moved there later. In particular the left tube which seemed to be a little swollen proximal to the clip, ie between the clip and the uterus and to a lesser degree the right as well. There would be virtually no doubt in my mind that the clips have been applied to the ampullary end of the tube which is not the correct place to put a clip … Both clips appear to have been properly closed” (exhibit 2 to the affidavit of JD Keeping filed 4 May 2000). Dr J Rolley (first defendant) “It is my opinion from viewing the video that the Filshie clips were applied to the mid-portion of the right and left Fallopian tubes. It is also my opinion from viewing the video that the clips appear to be completely closed. I agree with the opinions expressed by Dr Keeping and Professor Bennett that Filshie clips are usually applied 1-2cm from the isthmic area of the fallopian tube. However, I disagree that it is imperative for the clips to be applied only in the area 1-2cm from the isthmic area of the tube. In my professional opinion it does not matter where the clip is applied in the area between the isthmus and the approximate mid-point of the tube as long as the full cross-section of the tube is compressed with the Filshie clip. If all the tube is compressed within the Filshie clip then occlusion will occur. … The fact that the clips seen in the video do not appear attached to the fallopian tubes is not significant as the clamping effect causes a necrosis of the tube at the point of occlusion and thereafter the clip can fall into the peritoneal cavity or become attached to some other organ or structure within the pelvis. … Even though complete occlusion may be achieved by clamping of the fallopian tube, this does not necessarily prevent pregnancy. On occasion pregnancy may occur due to the formation of fistula in the proximal stump of the tube (ie the side closest to the uterus). A -- 8 of 14 -- 9 fistula of the fallopian tube is essentially a communication between the inside of the tube and the peritoneal cavity. … Alternatively the proximal and distal end of the separated tube can reanastomose i.e. rejoin resulting in a patent tube” (paras 8, 9 and 10 of the affidavit of JD Rolley filed by leave on 8 May 2000). Dr N Ngenda (second defendant) “It is my opinion from viewing the video that the Filshie clips were applied to the mid-portion of the right and left fallopian tubes. It is also my opinion from viewing the video that the proximal and distal ends of the right and left fallopian tubes appear to be separated. … Notwithstanding occlusion of the fallopian tubes pregnancy can still occur due to the subsequent formation of a fistula between the proximal and distal ends of the occluded tube … Alternatively, the proximal and distal ends of the tube can reanastomose ie rejoin resulting in a patent tube. Although I have no recollection of this particular surgery it was my invariable practice to place the clips in such a position as to totally occlude the fallopian tubes and I believe I did so in this case” (paragraphs 7 and 8 the affidavit of NA Ngenda filed by leave 8 May 2000). [21] In summary, in the Crawley action the medical opinion is all one way that the Filshie Clip was not placed on the plaintiff’s left fallopian tube at all. So far as the right fallopian tube is concerned only Dr Adam thought that it had been incorrectly applied. [22] In the Tanner action Professor Bennett and Dr Keeping concluded that the clips were properly closed but incorrectly placed on the broader part of the fallopian tubes. Dr Adam concluded that both clips were placed inappropriately and not closed completely. Dr Rolley deposed that both were closed correctly. [23] Mr McMurdo submitted that this evidence demonstrated that these were not applicator problems but operator problems. This submission, putting to one side Dr Adam’s opinion on the closure of the clips in Tanner, does not address the issue of the information given to the user of the applicator and clip by Femcare. Mr McMurdo submitted that since the first, second and third defendants have not pleaded failure on the part of Femcare to advise of the need for regular calibration or with respect to the increased failure rate if unserviced applicators are used there must be nothing in these allegations by the plaintiffs. That, in my view, is not a basis for disregarding the pleading and setting it at nothing. [24] Mr T McBride, Femcare’s solicitor, exhibited a document described as Operating Room Instructions: Cleaning, Sterilising and Maintenance of Equipment, which he has been informed by the managing director of Femcare was in use in 1997. Another instruction document was exhibited to another affidavit made by Mr McBride over the lunch adjournment which he was told was the 1992 manual. A further instruction manual (exhibit 1) was produced during the afternoon as the manual in operation from January 1999. There is no evidence to indicate that these were the only instruction manuals available to a user or that they were made available to the first, second and/or third defendants. It is not known which manual -- 9 of 14 -- 10 was supplied with the applicator(s) and clips used in the operative procedure on each plaintiff or, indeed, if any manual was supplied, although the managing director of Femcare has told Mr McBride that from 1994 to the present time each box containing each applicator manufactured and sold by Femcare has contained a manual covering cleaning and maintenance and operating procedures. Prior to 1994 two manuals were supplied in each box in which each applicator was sold, one manual covering cleaning and maintenance and one dealing with operating procedures. [25] Dr Rolley deposed that he had not seen the manual exhibited to Mr McBride’s affidavit said to have been in use in 1997. The 1997 manual warns on the first page as follows “ WARNINGS Each applicator is individually calibrated by the manufacturer. No adjustments should be made to the applicator by unauthorised persons. Calibration and recalibration are critical operations which must only be performed by the manufacturer or their appointed agent. Always check that the serial numbers on the handle assembly and the shaft of the applicator are the same. If they are not, DO NOT USE THE APPLICATOR.” Towards the end of that manual the following appears “NO OTHER MAINTENANCE OR ADJUSTMENT should be performed other than by the manufacturer or their appointed agent. The applicator is a finely calibrated instrument and no liability will be accepted by the manufacturer for problems or failures arising as a result of any unauthorised repair or adjustment. Like all mechanical equipment the Filshie equipment will deteriorate with use and age. It is strongly recommended that the equipment is serviced and recalibrated by the manufacturer or their appointed agents at least once a year depending on your usage rate.” [26] Although differently set out, the 1999 manual gives the same warning at the beginning as the 1997 manual. The warning at the end is differently expressed and appears in block capitals “LIKE ALL MECHANICAL EQUIPMENT THE FILSHIE EQUIPMENT WILL DETERIORATE WITH USE AND AGE. IT IS STRONGLY RECOMMENDED THAT THE EQUIPMENT IS SERVICED AND RECALIBRATED BY THE MANUFACTURER OR THEIR APPOINTED AGENT AT LEAST ONCE A YEAR OR EVERY 100 USAGES.” The earlier 1992 manual contains the same warning at the beginning of both the operating and service manuals (two documents were provided at that time). They contain no other warning. [27] On the present state of the evidence the Crawley action appears not to involve a calibration issue although Professor Bennett and Dr Keeping do not address this -- 10 of 14 -- 11 issue in their reports. It is still open in the Tanner action as a possible cause of failure of the procedure. What Femcare has not addressed is the allegation by each plaintiff that had she been appropriately informed of the increased risk of failure if the applicator had not been appropriately serviced and calibrated she would not have undergone that procedure. Mr McMurdo submitted that there is no evidence to support an allegation of increased risk. Two documents have been obtained on behalf of the plaintiffs pursuant to the Freedom of Information Act (TDH 1 and 2 to the affidavit of TD Honan filed by leave 8 May 2000). The first document, undated but by inference after conception in each case, was a letter sent to all patients who had undergone sterilisation using the Filshie clip. It states inter alia “Recently the manufacturers of filshie clip applicators advised hospitals that procedures that have been performed using filshie clip applicators that have not been serviced for over 12 months have a potentially high failure rate. Doctors and patients should be notified of the potential risk of failure. Patients should consider using alternative forms of contraception until they can discuss the issue with their doctor or the hospital. This hospital has now had all its instruments tested and the appropriate adjustments to the instruments have been made. The test results indicate that two of the instruments were out of calibration to a degree that may give rise to a higher than acceptable rate of failure. We have no way of determining whether the instrument used in your operation was one of those which was out of adjustment. The increased risk of pregnancy if the instrument was not properly adjusted could be several times higher than the three in one thousand normally associated with this procedure. To be perfectly safe you should not rely on the tubal ligation as a means of avoiding pregnancy.” [28] The second document is a letter from Dr GM Filshie to a Professor AW Walters of the University of Newcastle dated 11 June 1998. It states “To date the failure rate, as reported, is between 2 and 3 per thousand. This figure has been compiled by looking at all the published figures and doing a ratio. The reasons for failure can be listed as follows:- 1. [Placement] 2. There are cases where failures have occurred because the instruments have not been calibrated appropriately. This can happen in a number of ways:- (a) Each clip applicator is calibrated and if parts of one applicator are mixed with another applicator, this calibration will no longer be appropriate; (b) Sometimes the applicator is given to the surgeon by the nurse and the applicator is not properly screwed together … 3. [Placement]” -- 11 of 14 -- 12 [29] In a subsequent affidavit filed 8 May 2000 Mr Honan exhibits two further documents obtained under the Freedom of Information Act from the Hospital. The first was a copy of the Filshie Clip Safety Alert Update dated February 1999 taken from an article in the Journal of Obstetricians & Gynaecology vol 1 no 1 Feb 1999. The second is correspondence from United Medical Protection to members which is undated. The first document referred to failure rates greater than one to three per thousand in controlled clinical studies when the equipment was inadequately maintained. In the second the following appears “If the Filshie clip applicators have not been serviced at 12 monthly intervals it is recommended that practitioners contact patients in writing and notify patients of the potential increased failure rate. It is recommended that all patients who have had Filshie clip sterilisations since January 1, 1997 in institutions where the instruments have not been properly serviced be contacted. … As well as being informed that their procedure may have a higher failure rate than previously thought, all patients should be offered counselling by the individual practitioner. At the NSW teaching hospital where this problem was originally identified, close to 10 percent of patients who had undergone Filshie clip sterilisation after January 1 1997 have fallen pregnant. … ” [30] Dr D Gilmore an engineer retained by the first, second and third defendants was given two Filshie Clip applicators and six clips used by the Hospital to assess whether they were functioning properly. Neither had been serviced or recalibrated by “the Femcare repairer”. It is not made clear on the material if these applicators were used in the subject procedures. Dr Gilmore concluded that one applicator did not adequately secure the clip and the other overly compressed the clip. Neither appeared to satisfy the clip closure test criteria supplied by the manufacturer. [31] Whilst rule 293 is new in Queensland it has been available in Victoria for many years and in other jurisdictions. Dixon J said of the predecessor of that rule in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 90 “It confers a power of summarily dealing with an action which Barton J said should be reserved for exercise as to actions that are absolutely hopeless: Bayne v Riggall ” [32] The Northern Territory has a rule similar to Rule 293 and in Wilson v Union Insurance Co (1992) 112 FLR 166 Kearney J said at 181 “Order 23 is intended as a means for dealing with actions which are absolutely hopeless, those so obviously frivolous or unsustainable and untenable that it is plain and beyond rational debate that they cannot succeed. The power under O 23 is to be exercised by a court with great caution; an applicant bears a heavy burden. If the plaintiff shows an arguable case, one which is not unworthy of serious discussion and of evidence being led, a case not hopeless beyond argument, an application under O 23 should be dismissed. … The affidavit process is unsuitable when facts are in dispute and this also points to the jurisdiction being exercised only when the case is obvious and clear beyond doubt.” -- 12 of 14 -- 13 See also observations of the Victorian Court of Appeal in Olympic Airways SA v Nelson Wheeler Arnold and Mann Judd Associates Pty Ltd [1998] VSC 828 (25 August 1998). A similar rule is found in Western Australia (Rule 16) and South Australia (Rule 25). The onus on a defendant in seeking to obtain summary judgment is certainly no less onerous than on a plaintiff. Bleby J in Shipard v Motor Accident Commission (1997) 70 SASR 240 at 250 noted that “The obligation to be discharged by the defendant in an application made under R25.04 is a stringent one, and the power must be exercised with great care. As the Chief Justice said in Coombes & Barei Pty Ltd v Lincolne Scott Australia Pty Ltd (unreported, Supreme Court, Full Court, SA, No S6045, 28 February 1997 (at p 3): ‘It is not sufficient that the court might think it is likely that at the end of the day the party who invokes R25.04 will succeed, or even that the court thinks success for that party is more than likely. The requirement of the rule is more demanding than that. The rule performs an important function, particularly these days where there is an emphasis upon efficiency in the conduct of litigation, in enabling the court to dispose promptly and economically of claims entirely lacking in merit. But at the same time the court must be careful not to dispose of claims in this way unless they really are lacking in merit.’ It is quite inappropriate, when the outcome may depend on nuances of fact and degree, that the fate of the proceedings be determined in a summary fashion under this rule.” [33] At the best for Femcare the test is as has been long accepted in cases where a plaintiff seeks summary judgment. The expressions used were collected in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129: “The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘ so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’(the pleadings) ‘to stand will involve useless expense’. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say it once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’; ‘so to speak apparent at a glance’.” [34] These are actions where the plaintiffs are dependent in large measure on disclosure from the various defendants to refine their cases. Both women had the operative procedure performed upon them under general anaesthetic. Apart from the -- 13 of 14 -- 14 conversations which they had with the first and/or second defendants prior to the operative procedure being carried out they have no further information of their own knowledge about those procedures. It is inappropriate that they should be called upon to produce evidence in rebuttal of Femcare’s application for summary judgment when important issues, such as, which applicators were used and which, if any, instruction manuals were provided to the Hospital and/or the first and second defendants; the state of knowledge of Femcare about the increased risk at the relevant time; the nature of other communications, if any, from the manufacturer/distributor about the Filshie procedure; and the state of research into failure rates by Femcare at the time the procedures were carried out have not been explored. [35] The plaintiffs wish to retain engineers to examine the applicators and clips. There are differing medical views about the placement and effect on fertility of the clips which may be explored effectively in cross-examination. The plaintiffs are continuing to refine their pleadings as more information is obtained. The interplay between the defendants has not be explored. There are many factual matters yet to be revealed dependent upon disclosure and perhaps interrogatories. These are not actions apt for the application of the summary judgment procedure available in r 293. It is a beneficial provision but its availability ought not deprive a plaintiff of a hearing on the merits unless there is no reasonable prospect of success which is not the case here. It is a particularly inappropriate remedy in a case such as this where disclosure by the defendant seeking judgment will be an important aspect of the case. [36] It may be that the plaintiffs will wish to refine their pleadings in the light of the many issues canvassed on this application. That is for them. [37] The orders are: • Dismiss the application by the fifth defendant for summary judgment in each action. • Dismiss the application for summary judgment by the fifth defendant on the notice claiming contribution by the first, second and third defendants against the fifth defendant. [38] I will hear submissions as to costs. -- 14 of 14 --