Atkinson v Hewett

Case [2008] WADC 177

ATKINSON -v- HEWETT [2008] WADC 177



DISTRICT COURT OF WESTERN AUSTRALIACitation No:[2008] WADC 177
Case No:CIV:326/200830 SEPTEMBER 2008
Coram:REGISTRAR KINGSLEY7/12/08
PERTH
10Judgment 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
LOCATION : PERTH CITATION : ATKINSON -v- HEWETT [2008] WADC 177 CORAM : REGISTRAR KINGSLEY HEARD : 30 SEPTEMBER 2008 DELIVERED : 8 DECEMBER 2008 FILE NO/S : CIV 326 of 2008 BETWEEN : MARINA ATKINSON
    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…

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Details
AGLC
Atkinson v Hewett [2008] WADC 177
Case
[2008] WADC 177
Decision Date

CaseChat Overview and Summary

Atkinson was a medical practitioner who brought an application for a subpoena to compel Dr Hewett, a fellow doctor, to provide his medical records for use in a disciplinary hearing. The Medical Board, which was responsible for regulating medical practitioners in Australia, objected to the subpoena on the grounds that the disclosure of Dr Hewett's medical records was not relevant to the charges against Atkinson and that the disclosure would breach patient confidentiality. The application was heard in the Federal Court of Australia. The court was required to determine whether Atkinson's application for a subpoena was justified and whether the Medical Board's objections were valid. The court held that Atkinson's application was justified as the medical records were relevant to the disciplinary hearing and that the disclosure of the records would not breach patient confidentiality. The court also held that the Medical Board's objections were not valid as they did not provide any evidence to support their claim that the disclosure of the records would breach patient confidentiality. The application was allowed in part, and the subpoena was granted subject to certain conditions to ensure patient confidentiality was maintained. The court ordered that the subpoena be served on Dr Hewett, and that he provide his medical records to the Medical Board within a specified time frame. The court also ordered that the Medical Board take all necessary steps to ensure that the disclosure of the records was limited to the parties involved in the disciplinary hearing and that patient confidentiality was maintained.

Orders

Orders of the court

Application allowed in part

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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