Atkinson v Hewett
[2008] WADC 177
•8 DECEMBER 2008
ATKINSON -v- HEWETT [2008] WADC 177
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 177 | |
| Case No: | CIV:326/2008 | 30 SEPTEMBER 2008 | |
| Coram: | REGISTRAR KINGSLEY | 7/12/08 | |
| PERTH | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| PDF Version |
| Parties: | MARINA ATKINSON IAN GORDON HEWETT THE MEDICAL BOARD OF WESTERN AUSTRALIA |
Catchwords: | Practice Subpoena Objection by Medical Board |
Legislation: | Nil |
Case References: | Conway v Rimmer [1968] AC 910 Esso Australia Resources Ltd v Federal Commissioner of Taxation (Cth) (1999) 201 CLR 49 Jacobsen v Roger (1995) 182 CLR 572 Mediservice Pty Ltd v Minister for Health (WA) [2005] WADC 149 Sankeyy v Whitlam (1978) 142 CLR 1 Stanley & Anor v Layne Christensen Company & Ors [2004] WASCA 50 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
IAN GORDON HEWETT
Defendant
THE MEDICAL BOARD OF WESTERN AUSTRALIA
Objector
Catchwords:
Practice - Subpoena - Objection by Medical Board
Legislation:
Nil
Result:
Application allowed in part
(Page 2)
Representation:
Counsel:
Plaintiff : Mr J Johnson
Defendant : No appearance
Objector : Mr P Quiland
Solicitors:
Plaintiff : Julian Johnson
Defendant : Bradford & Co
Objector : Sparke Helmore
Case(s) referred to in judgment(s):
Conway v Rimmer [1968] AC 910
Esso Australia Resources Ltd v Federal Commissioner of Taxation (Cth) (1999) 201 CLR 49
Jacobsen v Roger (1995) 182 CLR 572
Mediservice Pty Ltd v Minister for Health (WA) [2005] WADC 149
Sankeyy v Whitlam (1978) 142 CLR 1
Stanley & Anor v Layne Christensen Company & Ors [2004] WASCA 50
(Page 3)
1 REGISTRAR KINGSLEY: By summons dated 20 February 2008 the plaintiff sought and obtained an order for leave to issue a subpoena directed to the Medical Board of Western Australia to produce all documents in its possession custody or power concerning its previous investigations relating to Dr Ian Gordon Hewett and the apparent contracting by a number of his patients – including the plaintiff – of MRSA infection.
2 By summons dated 3 July 2008 the Medical Board sought to have the subpoena issued by the court set aside. Alternatively the application seeks to have the terms of the subpoena limited to exclude:
(a) all documents to which privilege applies; and
(b) all documents to which public interest immunity applies.
3 An affidavit sworn by Pamela Malcolm on 2 July 2008 (the Malcolm affidavit) has been filed in support of the application. In her affidavit Ms Malcolm deposes she has divided the documentation held by the Board into seven categories being:
1. medical records of the plaintiff;
2. documents passing between the Board and the Communicable Diseases Control Directorate;
3. documents passing between a complainant and the office of Heath Review;
4. documents passing between the Board and its solicitors;
5. documents relating to seven other patients;
6. witness statements and expert evidence; and
7. documents, memorandums and resolutions of the Board.
4 At par 12 of the Malcolm affidavit, Ms Malcolm deposes that the documents held by the Board in relation to the defendant were obtained by the Board by way of material supplied by the complainants, or by the Board using its investigative power for the purpose of investigating the complaints, and to pursue a disciplinary application before the State Administrative Tribunal.
(Page 4)
5 Since receiving the affidavit of Ms Malcolm the plaintiff's solicitor has been able to ascertain more clearly the documents held by the Medical Board and to limit his request. The plaintiff, at par 5 of the written summons states that only the following categories of documents are sought:
(a) the medical records of the plaintiff;
(b) documents passing between the Board and the Communicable Diseases Control Directorate, in so far as it relates to the plaintiff; and
(c) witness statements and expert evidence is so far as it relates to the plaintiff's care by Dr Hewett.
6 The Board seeks to have the subpoena set aside on the basis that:
(a) it is oppressive and discloses no legitimate forensic purposes; and
(b) seeks the production of documents, the subject of legal professional privilege and public interest immunity.
7 Plaintiff's counsel submits that as Dr Hewett died in December 2006 the plaintiff has limited means to make out her case and that, for this reason, any balance of discretion should fall in the plaintiff's favour.
Oppressiveness
8 The subpoena in its original terms was expressed widely. Now that plaintiff's counsel has considered the various categories of documents referred to in the Malcolm affidavit, and has limited the request to three classes of documents, in my opinion any objection as to oppressiveness falls away.
Legitimate forensic purposes
9 In her affidavit sworn 23 January 2008 the plaintiff deposes that Dr Hewett would from time to time performed acupuncture to her neck and lower back and occasionally give injections of local anaesthetic and cortisone.
10 On 10 May 2004 the plaintiff had a flare up of symptoms and went to Dr Hewett. Dr Hewett arranged for an injection by his locum doctor, Dr Rivers. Following that injection Dr Hewett massaged the plaintiff's back, including the area where Dr Rivers had given the
(Page 5)
- injection. The plaintiff deposes Dr Hewett massaged with his un-gloved hands, and did not wash his hands prior to massaging her.
11 By 20 May 2004 the plaintiff was diagnosed as having a MRSA infection (colloquially "golden staph"). Staff at Royal Perth Hospital advised they were treating a number of patients of Dr Hewett's who had contracted MRSA.
12 After a formal complaint to the Medical Board, and advice that the matter would proceed to a hearing in the State Administrative Tribunal, the plaintiff deposes "the complaint against Dr Hewett was dismissed because he had voluntarily retired and was suffering from a serious illness".
13 The principles which guide me in coming to a decision as to whether there is a legitimate forensic purpose are conveniently set out in Stanley & Anor v Layne Christensen Company&Ors [2004] WASCA 50 at par 9. Those principles are:
"On the basis of this evidence the learned Master concluded that the first and second respondents had a legitimate forensic purpose for issuing the subpoena to CS to require her to produce copies of all affidavits in her possession filed in the Family Court proceedings. The necessity for there to be a 'legitimate forensic purpose' in such circumstances is well established by many authorities including FrIed & Ors v National Australia Bank Ltd & Ors(2000) 175 ALR 195 (sic) per Weinberg J at [29] and [30] and Apache Northwest Pty Ltd & Ors v Western Power Corporation (1998) 19 WAR 350 at 374. In concluding that a legitimate forensic purpose had been established for the first and second respondents to issue a subpoena requiring the production of copies of the affidavits in the Family Court proceedings the learned Master identified the principles which regulated the decision which he was required to make as follows:
'There are, I think, four points of principle which emerge from the cases. They are:
(1) A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to the issues before the trier of fact, including for the purpose of meeting the
- opposing case by way of cross-examination: see Apache Northwest Pty Ltd & Ors v Western Power Corporation (1998) 19 WAR 350 at 374; National Employers' Mutual General Insurance Association Ltd v Waind &Anor[1978] 1 NSWLR 372 at 385; Maronis Holdings Ltd & Ors v Nippon Credit Australia Ltd & Ors (2000) 18 ACLC 609 at 613 – 614.
- (2) In assessing whether a legitimate forensic purpose exists in relation to documents sought on an early return of subpoena, it must be borne in mind that the necessity for having a document to fairly dispose of the issues at trial might well not become apparent before trial. It may, for example, become apparent when a document is used in cross-examination to refute unforseen evidence-in-chief. Thus, whether a document is "necessary" to fairly dispose of proceedings is to be understood in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, and fairly disposing of proceedings, even if it might not readily be seen, at the pre-inspection stage, necessarily to be admissible in evidence: see Apache Northwest (supra) at 376. Cases will be rare in which, prior to production of documents, a subpoena will be set aside as an abuse of process on the ground the documents by description are manifestly irrelevant to the subject proceedings, or are incapable of bearing upon matters of credit pertinent to the proceedings: see Brand v Digi-Tech [2001] NSWSC 425.
(3) At least one object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage. Hence, no narrow view as to the legitimate purposes of a subpoena ought to be taken: see Khanna v Lovell White Durrant [1995] 1 WLR 121 at 123.
(Page 7)
- (4) There is no requirement that to avoid the stigma of fishing, a party must already by in possession of some evidence before issuing a subpoena. Historically the concept of fishing was not concerned with the prior possession of evidence, but rather the prior pleading of issues for which the evidence sought would be relevant: see Bailey & Ors v Beagle Management Pty Ltd & Ors (2001) 105 FCR 136 at 143 –144; Chapman v Luminis Pty Ltd [2001] FCA 1580 at [48]. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available: see Bailey (supra) at 143.'
- We agree, with respect, that the learned Master correctly identified and addressed the principles upon which a determination of whether or not the subpoena issued to CS should be allowed to stand. Further, and again with respect, we consider that the learned Master was correct in his conclusion that in the light of the evidence before him in the affidavit of Mr Connolly there was justification for the issue of this subpoena insofar as it required the production to the court of copies in the possession of CS of affidavits which had been filed in the Family Court proceedings."
14 Defendant's counsel submits that the width of the subpoena demonstrates that the plaintiff simply seeks to trawl through the documents in the hope that it may lead to ascertaining witnesses or evidentiary documents.
15 Having regard to the first principle stated above, where a document gives rise to a line of enquiry relevant to the issues before the court, then a legitimate forensic purpose is established. The subpoena issued in this action directed to the Medical Board relates to enquires and investigations, including correspondence from Dr Hewett, in relation to the apparent contracting by the plaintiff, and others, of MRSA. That is the issue squarely in this Court.
16 In my opinion the subpoena issued is not a trawling exercise and has a legitimate forensic purpose.
(Page 8)
Legal Professional and Public Interest Immunity
17 The Medical Board is a statutory body established pursuant to s 4 of the Medical Act 1894 ("Medical Act").
18 The Board has a number of powers including:
• regulation and the handling of complaints and charges against medical practitioners;
• powers to investigate and obtain documents and take statements; and
• disciplinary powers.
19 It would appear from par 7 of the Malcolm affidavit that the Board investigated Dr Hewett and obtained documents and witness statements as a result of that investigation. As a result the Board instituted disciplinary proceedings pursuant to s 13(1)(a) and (c) of the Medical Act in the State Administrative Tribunal. Those proceedings did not result in a hearing. Shortly thereafter Dr Hewett died.
20 In both the Malcolm affidavit and the written submissions it is stated that the Board's primary objective is the protection of the safety of the public and the maintenance of professional standards to ensure that objective. Ms Malcolm deposes that she is concerned the Board's statutory role will be undermined if the Board makes available all documents which it has gathered in performing its function and in pursuing the disciplinary proceedings for use by the plaintiff in her civil proceedings.
21 When exercising its investigative or disciplinary functions, documents will be brought into existence for the purpose of legal advice, or for use in the disciplinary proceedings. Esso Australia Resources Ltd v Federal Commissioner of Taxation (Cth) (1999) 201 CLR 49 is authority for the proposition that where documents are brought into existence for the dominant purpose of submitting them to legal advisors for advice, or for use in legal proceedings, those documents are protected by legal professional privilege. The proposition can apply to the documents sought by the plaintiff. Where the documents in the hands of the Medical Board fall within the Esso (supra) proposition then those documents will be protected by legal professional privilege.
22 Defendant's counsel also submits that a basis for setting aside the subpoena, or restricting inspection is the ground of public interest immunity.
(Page 9)
23 As a general rule a court will not order the production of a document, although relevant and otherwise admissible if it would be injurious to the public interest to disclose it, (Sankeyy v Whitlam (1978) 142 CLR 1 at 28). Public interest immunity has a particular application where information is gathered upon the basis of confidentiality: "If the State insists on a man disclosing his private affairs for a particular purpose it requires a very strong case to justify that disclosure being used for other purposes (Conway v Rimmer [1968] AC 910 at 946).
24 However, in Jacobsen v Roger (1995) 182 CLR 572 the court stated at 590:
"Nevertheless, even where the private right to confidentiality is of some magnitude and its presentation is in itself in the public interest it must be weighed against the public interest in the disclosure for the purpose of the investigation and prosecution of the offences in question."
25 In this matter defendant's counsel argues that the statutory purpose of the Medical Board would not be properly fulfilled, and complainants would be reluctant in making a complaint to the Board, if the nature of the complaint and all documents surrounding the complaint were disclosed in later proceedings. The defendant counsel submits that the public interest in preserving the function power and role of the Board, and the confidentiality of patients, outweighs the interest of the plaintiff in pursuing her common law claim.
26 In this matter the death of Dr Hewett makes the gathering of facts relevant to the merits of the plaintiff's claim much more difficult. As plaintiff's counsel submits, the plaintiff cannot interrogate Dr Hewett as to his account of the treatment given to the plaintiff, and his awareness of being a carrier of MRSA. Plaintiff's counsel submits that the evidentiary significance of the documents held by the Board is elevated because of the unavailability of the usual means for the plaintiff to gather evidence.
27 Further plaintiff's counsel submits, citing Mediservice Pty Ltd v Minister for Health (WA) [2005] WADC 149 in support, there is a public interest in administration of justice by allowing the plaintiff's claim to be determined on the best available evidence.
28 The issue before me is to balance the public interest in withholding documents from production, against the need for a court to have all relevant information to perform its function.
(Page 10)
29 I am of the opinion that in the circumstances of this case the balance falls in favour of the plaintiff. Dr Hewett has died and the plaintiff now has limited means to gather evidence as to the merits of her claim. The documentation sought by the plaintiff may go to assisting the plaintiff in the proving of her claim, proof which otherwise may have come from Dr Hewett.
30 In allowing inspection of the documents in the three categories referred to at [5] I am aware that inspection may then reveal the author of documents. Defendant's counsel has raised the issue of confidentiality, including the fact that there is documentation relating to seven patients not a party to the plaintiff's claim. Again, having regard to the fact that Dr Hewett has died and the means of the plaintiff to gather evidence has been limited, the balance of my discretion falls in favour of the plaintiff. In ordering inspection it may be necessary to order that the identity of the author of the document be concealed.
31 Defendant's counsel submits that internal working documents of the Board are not relevant to the plaintiff's claim. I agree with the defendant's counsel submission that the public interest is not served by disclosure of the internal workings of the Board.
32 I will hear from counsel on the form of orders and whether I am obliged to inspect the documents in relation to confidentiality issues.
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