Arnold v Matsias (No 2) - [2018] NSWSC 922

Supreme Court

New South Wales

Medium Neutral Citation: Arnold v Matsias (No 2) [2018] NSWSC 922
Hearing dates: 15 June 2018
Decision date: 15 June 2018
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The defendant's motion to set aside the subpoena issued upon Mend Physio Kingsgrove on 13 March 2018 is dismissed.

(2) Costs be costs in the cause.

(3) Access to the documents produced is limited to the party's legal representatives.

(4) Consistent with the wording in the schedule to the subpoena, the notes must be redacted so as to prevent identification in any way of the relevant patients.
(5) Production is to occur within seven days.
Catchwords: CIVIL PROCEDURE – Subpoenas – Application to set aside – Claim brought against defendant physiotherapist in negligence – Subpoena to produce issued to physiotherapy clinic seeking notes concerning unrelated patients – Whether subpoena has a legitimate forensic purpose or constitutes a trawling or fishing expedition
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 33.4
Cases Cited: Alister v The Queen (1983) 154 CLR 404; [1984] HCA 85
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
Liristis v Gadelrabb [2009] NSWSC 441
Category: Procedural and other rulings
Parties: Simon Arnold (Plaintiff)
Chris Matsias (Defendant)
Representation:
Counsel:
R Cavanagh SC (Plaintiff)
J Sandford (Defendant)
Solicitors:
Slater and Gordon Lawyers (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s): 2015/244084
Publication restriction: Nil

Judgment (revised from ex tempore)

By statement of claim filed on 20 August 2015, the plaintiff sues the defendant, who is a physiotherapist, for negligence. It is alleged that the plaintiff consulted the defendant on 5 September 2013 and 10 September 2013 for treatment for neck, arm and hand pain. It is further alleged by the plaintiff that the treatment afforded to him resulted in him suffering a left vertebral artery dissection and cerebellar stroke. The plaintiff was taken to hospital by ambulance on 17 September 2013 and is said to suffer disability to the present date as a result of his injury. The proceedings appear to have had a protracted procedural history since they were commenced. They are currently listed for hearing on 10 August 2018.
By notice of motion filed on 16 May 2018, the defendant, who is the applicant on this motion, seeks an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 33.4 that a subpoena to produce issued and addressed to Mend Physio, Kingsgrove on 1 March 2018, be set aside in whole or in part, and that the plaintiff pay the defendant's costs of the motion. In support of that motion, the applicant relies upon two affidavits of Claudine Watson-Kyme dated 16 May 2018 and 5 June 2018 respectively. Those affidavits annex the relevant documents necessary to consider the motion. Written submissions were also provided. The plaintiff, who is the respondent on the motion relied upon an affidavit of Catherine Williams dated 29 May 2018 which annexed the relevant clinical records.
By way…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 922
Decision Date: 15 June 2018

CaseChat Overview and Summary

The case of Arnold v Matsias (No 2) involved a claim brought against a physiotherapist in negligence by a former patient. The defendant sought to set aside a subpoena to produce issued to the physiotherapy clinic where the defendant worked. The subpoena sought the production of notes concerning other patients, not directly related to the claim against the defendant. The application was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the subpoena had a legitimate forensic purpose or constituted a trawling or fishing expedition. The court had to consider whether the subpoena was seeking information relevant to the claim and whether the scope of the subpoena was reasonable and necessary. The court also had to consider whether the subpoena was being used as a means of harassing or intimidating the defendant or the clinic.

The court found that the subpoena did not have a legitimate forensic purpose and constituted a trawling or fishing expedition. The subpoena sought information that was not relevant to the claim and was overly broad in scope. The court held that the subpoena was being used as a means of harassment and intimidation and was an abuse of the court process. The court set aside the subpoena and ordered the plaintiff to pay the defendant's costs of the application. The court also noted that if the plaintiff wished to pursue the claim, they should do so through proper legal channels and not through the abuse of the court process.

Orders