Bain v Bambit and Australian Health Practitioner Regulation Agency
[2012] NSWDC 113
•15 August 2012
District Court
New South Wales
Medium Neutral Citation: Bain v Bambit & Australian Health Practitioner Regulation Agency [2012] NSWDC 113 Hearing dates: 18/07/2012 & 08/08/2012 Decision date: 15 August 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: See paragraph [88] for orders.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: PRACTICE AND PROCEDURE - appropriateness of preliminary discovery where proposed defendant and the possible causes of action against that defendant are already identifiable to the plaintiff and to her advisors - whether orders sought are justified for the purpose of plaintiff determining whether to commence proceedings Legislation Cited: Civil Liability Act 2002, s 3B, s 5B, s 5D, s 16, s 50
Civil Procedure Act 2005, s 3, s 18, s 56, Pt 2A
Freedom of Information Act 1982, s 41
Legal Profession Act 2004, s 347
Uniform Civil Procedure Rules 2005, r 5.3, r 5.4Cases Cited: Dean v Phung [2012] NSWCA 223
Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; (2010) 77 NSWLR 506
Medical Board of Queensland v Bambit [2010] QCAT 150
Morton v Nylex Ltd [2007] NSWSC 562
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) NSWLR 116
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147
Strinic v Singh [2009] NSWCA 15Texts Cited: DC Hammond MD, Atlas of Aesthetic Breast Surgery, 2009, Elsevier Inc., ch 8
Dorland's Illustrated Medical Dictionary, 28th Ed. WB Saunders, 1994
Ritchie's Uniform Civil Procedure NSW, Lexis Nexis, ButterworthsCategory: Principal judgment Parties: Lisa Bain (Plaintiff/Applicant)
Dr Jayne Bambit (First defendant/Respondent)
Australian Health Practitioner Regulation Agency (Second defendant/Respondent)Representation: Ms N Watson (Plaintiff/Applicant)
Mr EC Muston (First defendant/Respondent)
No appearance for AHPRA on 18 July 2012; Mr B Thomson, solicitor, on 8 August 2012 (Second defendant/Respondent)
Rishworth Dodd & Co (Plaintiff/Applicant)
Avant Law Pty Ltd (First defendant/ Respondent)
No appearance for AHPRA on 18 July 2012; Crown Solicitor for the State of NSW on 8 August 2012 (Second defendant/Respondent)
File Number(s): 2012/174073 Publication restriction: None
Judgment
Table of Contents
Summons
[1] - [2]
Issue
[3]
Evidence
[4]
Facts
[5] - [38]
Legislation
[39] - [47]
Submissions of the parties
[48] - [52]
Consideration
[53] - [84]
Application concerning Dr Bambit
[54] - [78]
Application concerning AHPRA
[79] - [83]
Disposition
[85]
Costs
[86] - [87]
Orders
[88]
Summons
In this summons, the plaintiff applicant, Ms Lisa Bain, seeks orders for preliminary discovery against Dr Jayne Bambit, the first defendant respondent, a cosmetic surgeon, and the Australian Health Practitioner Regulation Agency ["AHPRA"], the second defendant respondent, a regulatory authority.
The context of the summons is that on 6 October 2009, the first defendant performed operative procedures on the plaintiff's breasts and eyelids. The plaintiff is seeking preliminary discovery because she is contemplating bringing an action for damages against Dr Bambit arising from such surgery, and she needs to determine whether to commence such proceedings. In the case of each defendant respondent to the summons, the plaintiff respectively seeks relief by way of orders requested pursuant to the Uniform Civil Procedure Rules 2005, namely r 5.3 and r 5.4, as follows:
"(a) All documents showing or tending to show any restrictions on Dr Bambit's practice from the 1st January 2005 to 5 October 2009.
(b) All or any documents in Statement of Agreed Facts and Disputes between the Medical Board of Queensland and Dr Bambit relating to proceedings in the Queensland Civil Administrative Tribunal dated 26 March 2010.
(c) Any documents showing any restrictions on her right to practice medicine between late 2005 and the 5 October 2009.
(d) Any undertakings made by the (sic) Dr Bambit relating to the (sic) any restrictions on her practice."
Issue
The issue for determination as raised by the summons is simply, whether the plaintiff is entitled to an order for preliminary discovery against the respective defendants pursuant to UCPR r 5.3 and r 5.4 where, in the context of proceedings being contemplated against Dr Bambit, the plaintiff is already able to identify both the proposed defendant she wishes to proceed against, and the potential causes of action that are open for her to pursue against that defendant.
Evidence
The evidence tendered at the hearing of the summons on 18 July 2012 comprised affidavits from the solicitors for the plaintiff, Mr Brian Manning Dodd, sworn on 30 May 2012, and Mr Stephen John Dodd, sworn on 19 June 2012, supplemented by some correspondence: Exhibit "A". On 8 August 2012, the evidence was augmented by the tender of the additional definitional material comprising Chapter 8 of the Hammond text, Atlas of Aesthetic Breast Surgery, 2009: Exhibit "B".
Facts
On 5 October 2009, Ms Bain gave her consent for Dr Bambit to carry out two surgical procedures upon her. These procedures were identified on the consent form as breast augmentation and upper eyelid lift. The evidence does not disclose whether these procedures were to be carried out for therapeutic or non-therapeutic reasons. For present purposes, the difference is immaterial.
On 6 October 2009, Dr Bambit operated upon the plaintiff at the Western Day Surgery Centre in St Albans, in Victoria. Dr Bambit's operation note of that date describes three operative procedures as apparently having been performed on the plaintiff on that day.
These procedures were described as having been, first, bilateral breast augmentation, secondly, correction of tuberous breasts, and thirdly, upper blepharoplasty, which is a procedure for lifting the upper eyelids. Whether or not the first two of these three procedures were in fact part of the one procedure earlier described as breast augmentation, has not been explained in the evidence.
Tuberous breasts is a deformity of breast shape that typically includes a malpositioned inframammary fold, and usually presents with a constricted lower pole skin envelope that is tight and unexpanded, that variably protrudes through the areola, creating a "pseudoherniation". Exhibit "B", page 183, which comprises Chapter 8 of Hammond's Atlas of Aesthetic Breast Surgery. At page 194 of Exhibit "B", the following summary of the challenges for the surgical management of tuberous breasts appears:
"Summary
Correction of a patient with a tuberous breast deformity represents one of the most significant challenges that an aesthetic breast surgeon can face. However, by accurately analyzing the nature of the deformity and developing a surgical plan designed to address each element of the deformity in a (sic) such a way that the technical maneuvers complement one another, excellent results can be obtained. There is perhaps no other instance in aesthetic breast surgery where the results, for both the patient and surgeon alike, can be more rewarding."
Dr Bambit's operation note indicated that in the breast surgery she had performed on the plaintiff, she carried out an inframammary incision in the pre-pectoral plane, including a pre-pectoral dissection. The operation note discloses that she released a tight lower half constriction with diathermy, and it appears, a radial dissection, but that some constriction still remained present. Dr Bambit noted that at that time, she did not want to undertake a more extensive dissection, and she also noted a need for a possible further surgical procedure, but that this required a discussion with the plaintiff, which she proposed to have the next day. She noted that she concluded the procedure by inserting 505g breast augmentation implants.
Ms Bain became dissatisfied with the results of the surgery that Dr Bambit had carried out to her breasts and she has consulted her solicitor for the purpose of exploring the merit or otherwise of bringing proceedings for damages against Dr Bambit.
At this stage, the nature of that dissatisfaction, and whether or not it is founded upon expert opinion, remains unexplained, as no expert evidence was put forward on behalf of the plaintiff. In the present scheme of things the absence of such an explanation may not be remarkable given that the plaintiff is still in the process of obtaining legal advice as to whether or not she should pursue an action for damages against Dr Bambit.
Initially, in correspondence between the parties, it was suggested on behalf of Ms Bain that her proposed proceedings would be founded upon an alleged breach of duty of care on the part of Dr Bambit. During oral argument that position shifted somewhat to a consideration of a possible claim by the plaintiff in trespass. A claim was made that there may have been a battery upon the plaintiff in respect of a procedure for which she had not given consent, or because of non-disclosure of relevant matters by Dr Bambit which, it was argued, may have vitiated the consent that had been given by the plaintiff. That is a matter to which I shall return in my consideration of the question of whether the plaintiff is entitled to the relief as claimed.
In the course of undertaking preparation for advising the plaintiff as to whether to commence proceedings against Dr Bambit, Ms Bain's solicitor has become aware that there had been some past disciplinary proceedings involving Dr Bambit arising from her practise as a cosmetic surgeon, in which some protective orders had been made by the Queensland Civil and Administrative Tribunal ["QCAT"] on 26 March 2010 in respect of that practise, including in relation to Dr Bambit performing breast surgery: Medical Board of Queensland v Bambit [2010] QCAT 150.
The protective orders in those proceedings followed findings that Dr Bambit had engaged in unsatisfactory professional conduct. The resultant protective orders involved a total of 18 professional undertakings given by Dr Bambit. Those undertakings are listed in Annexure A to the published QCAT decision. Those undertakings, which followed undisclosed agreed facts, are also noted on the public record of AHPRA with regard to Dr Bambit's registration details.
Undertakings numbered 3 and 4 of 18 in Annexure A to the QCAT decision relevantly state:
"3. I will not perform any combined mastopexy augmentation procedures.
4. I will provide every patient on whom I perform procedures with a written information document including warnings of operative risks and complications and have each patient sign a consent form indicating that they have read this material. The signed consent form will be retained in the patient records.'
There was no evidence tendered on this application concerning the technical details that might have been disclosed to the plaintiff of the operation Dr Bambit intended to carry out on the plaintiff. Similarly, there was no information tendered as to the nature of any details provided by Dr Bambit to the plaintiff when her consent to the surgery was obtained, other than the words which appeared on the consent form and in the operation note to which I have already referred. Significantly, key medical terms in those documents were left undefined when the initial argument had concluded on 18 July 2012.
In an endeavour to avoid costs, the parties were referred to a standard medical dictionary to ascertain whether some medical terms could be the subject of agreement, as without evidence or agreement, it is not open to a court to arrive at or adopt such definitions where there is controversy: Strinic v Singh [2009] NSWCA 15.
To a degree, the definitions for those procedures have now been resolved by the tender of further evidence, on 8 August 2012, when taken together with some other uncontested definitions.
In this regard "mastopexy" is defined as a mammaplasty performed to correct a pendulous breast: Dorland's Illustrated Medical Dictionary, 28th International Edition, WB Saunders, 1994, p 993. In the same dictionary, "mammaplasty" is defined as plastic reconstruction of the breast, as may be performed to augment or reduce its size: Dorland's, p 984. The adjectival description "tuberous" is defined as covered in tubers, or being knobby in appearance: Dorland's, p 1759.
On behalf of the plaintiff, the view was taken that the Dorland's definition of "tuberous" as it applied to breasts, was inadequate in this instance.
Accordingly, the plaintiff sought to rely upon a copy of Chapter 8 of the textbook entitled Atlas of Aesthetic Breast Surgery, 2009, DC Hammond MD, Elsevier Inc, in an endeavour to provide the relevant definition.
In the absence of consent to that course, it was necessary to re-list the matter to determine whether this material should be received in evidence. On that occasion, this additional material was objected to by Dr Bambit's representatives. Following argument, I determined that the chapter in question simply provided background and definition material and it was therefore admitted into evidence for that limited purpose, as Exhibit "B". It does not have the status of expert opinion on any issue of contention between the parties.
The essence of the present application is that the solicitor for the plaintiff wishes to inspect certain documents held by Dr Bambit and by AHPRA, concerning the factual basis upon which those undertakings were given by Dr Bambit in the context of protective orders. This material is required so that he can undertake necessary preparation in order to be in a position to advise the plaintiff whether or not to commence proceedings against Dr Bambit, as any such proceedings against Dr Bambit require certification as to merit at the time of filing: s 347 of the Legal Profession Act 2004.
As the QCAT proceedings to which I have already referred related to surgical procedures carried out by Dr Bambit on 9 of her patients in the period between 2005 and 2007, with protective orders ultimately being made in those proceedings on 26 March 2010. It appears that these matters could arguably be of some relevance to a consideration of the proposed claim by the plaintiff against Dr Bambit. The underlying premise of the plaintiff's argument in that regard is that the matters, the subject of Dr Bambit's undertakings made on 26 March 2010, involved her surgical abilities and practices at the time she operated upon the plaintiff on 6 October 2009, and they are therefore relevant to the present civil dispute between the parties.
On behalf of the plaintiff, this question of relevance was sought to be established by reference to matters set out in the QCAT decision concerning Dr Bambit as follows.
The QCAT decision on 26 March 2010 followed a hearing which took place on 9 February 2010. I have already referred to the undertakings noted in Annexure A to that decision. The final paragraph of the QCAT decision noted that since July 2007, Dr Bambit had beforehand, voluntarily submitted to restrictions being placed on her practise, and the Tribunal was satisfied that the undertakings as set out in the Annexure were appropriate to the circumstances.
Annexure "E" to the affidavit of Mr Brian Dodd sworn on 30 May 2012 reveals that there were 5 documents held by AHPRA detailing all restrictions and undertakings in force on Dr Bambit's registration as a medical practitioner from 1 July 2007 until the date of that annexure, namely, 9 March 2012. Those documents were listed as follows:
Doc No.
Date
Description
1.
30 July 2007
Medical Board of Queensland - Schedule of Undertakings given by Dr Jayne Bambit
2.
12 December 2008
Medical Board of Queensland - Schedule of Undertakings given by Dr Jayne Bambit
3.
23 December 2008
Medical Practitioners Board of Victoria - Schedule of Restrictions recorded on the registration of Dr Jayne Bambit in Victoria
4.
12 February 2009
NSW Medical Board - Conditions to be recorded on the registration of Dr Jayne Bambit
5.
5 May 2010
Medical Practitioners Board of Victoria - Schedule of Restrictions recorded on the registration of Dr Jayne Bambit in Victoria
By the above means, the plaintiff has argued that since the restrictive undertakings have been demonstrated to have applied to Dr Bambit's surgical practise in the period between 30 July 2007 and 5 May 2010, thus spanning the time of the operation on the plaintiff on 6 October 2009, it is relevant and necessary that she be provided with details of agreed facts and undertakings and other related documents held in the files of AHPRA in order to evaluate her proposed claim against Dr Bambit for the purpose of determining whether or not, or how, she should.
For example, it was argued, if the plaintiff chose to pursue a claim of battery in trespass, based on vitiated consent due to inadequate information being provided to her at the time she gave her formal consent to the breast surgery, her claim would be formulated and particularised as an intentional tort by reason of the operation of s 3B(1) of the Civil Liability Act 2002. This would permit damages to be assessed according to common law principles rather than the more restricted damages provisions imposed by that Act, notably s 16 of that Act concerning the awarding of damages for non-economic loss. A similar point arises with regard to any defence based upon that Act concerning peer professional opinion in Australia: s 50 of the CL Act.
AHPRA had advised the plaintiff's solicitor that pursuant to s 41 of the Freedom of Information Act 1982 it was considered that these documents were exempt from production on an FOI request because they contained personal information and because the disclosure of that information was considered to be unreasonable in the circumstances. There is no dispute that those factors were appropriate considerations in the context of a refusal of an FOI request.
Following AHPRA's refusal of the FOI request, on 14 May 2012, the solicitor for the plaintiff wrote a letter to Dr Bambit's solicitors in the form of Annexure "G" to the 30 May 2012 affidavit sworn by Mr Brian Dodd. That letter was in the following terms:
"We acknowledge receipt of your letter of the 8th inst. Documents are required to enable our client to consider whether or not there is a breach of duty of care by Dr Bambit in relation to treatment of our client when she underwent surgery by Dr Bambit. Obviously documents required to consider that aspect of the matter and to obtain an experts report relating to any proposed allegation against Dr Bambit. If we do not receive the documents by 5.00 p.m. Tuesday, 15 May 2012 the appropriate Motion will be filed without further notice to you."
In the absence of a compliant reply to that letter, the present summons was filed.
The proposed proceedings contemplated by the plaintiff involve a civil dispute within the meaning of s 3(1) of the Civil Procedure Act 2005 ["CP Act"], and the Uniform Civil Procedure Rules 2005 ["UCPR"].
It is plain that the considerations that apply to a determination of whether the requested documents are exempted under an FOI request, are different to the consideration of whether such documents should be made available in an application for preliminary discovery, or by way of a subpoena for production.
In my view, for the limited purpose of determining this application, there is a low threshold for establishing relevance of the requested material. This is because the request for the production of the documents is aimed at obtaining expert opinion on professional and factual matters for the purpose of providing proper advice to the plaintiff on whether or not to commence proceedings against her former surgeon, and not on the ultimate issue that may emerge for decision in any such proceedings. In this regard, it is also relevant to note that prima facie, if proceedings for damages had been on foot between the parties, the material would be capable of being produced on subpoena in any event.
Although AHPRA did not appear at the initial hearing when the proceedings were first heard on 18 July 2012, at that time, I was satisfied that AHPRA had been made aware of the hearing date for the summons. Given the non-appearance of AHPRA, but in view of the fact that AHPRA produced the required documents to the court in an envelope addressed to the plaintiff's solicitor, on that occasion I inferred that AHPRA was submitting to any orders for inspection that might be made pursuant to this summons.
When the matter was re-listed for further argument on 8 August 2012, AHPRA appeared through its solicitor, Mr Thomson, and submitted to the order of the court, except as to costs. At that time Mr Thomson confirmed that the inference identified in the immediately preceding paragraph had been correctly drawn on the earlier occasion.
It is therefore necessary to examine the governing legislative provisions to determine, on the facts in evidence in these proceedings, and from the reasonable inferences available from those facts, whether those provisions afford the plaintiff the relief she seeks.
Legislation
In respect of the claim for preliminary discovery against Dr Bambit, UCPR r 5.3 relevantly provides:
5.3 Discovery of documents from prospective defendant
(1) If it appears to the court that:
(a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and
(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and
(c) inspection of such a document would assist the applicant to make the decision concerned,
the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.
(2) An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation.
(3) Unless the court orders otherwise, an application for an order under this rule:
(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and
(b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.
(4) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to decide whether or not to claim or cross-claim against a person who is not a party to the proceedings.
In respect of the claim for preliminary discovery against AHPRA, UCPR r 5.4 relevantly provides:
5.4 Discovery of documents from other persons
(1) The court may order that a person who is not a party to proceedings, but in respect of whom it appears to the court that the person may have or have had possession of a document that relates to any question in the proceedings, must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to that question.
(2) Unless the court orders otherwise, an application for an order under this rule:
(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and
(b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.
Section 56 of the CP Act is relevant to the disposition of the issues raised by the plaintiff's summons. That section identifies the overriding purpose of the scheme under the UCPR rules as being to facilitate a just, quick and cheap resolution of issues, as is required by s 56(2) of the CP Act. The provision applies not only to proceedings, but also to matters involving "civil dispute": s 56(1) of the CP Act. Any application of the rules must have these objects in mind.
The term "civil dispute" is defined by s 3(1) of the CP Act as having the same meaning as it has in Pt 2A of that Act, and s 18A(1) of that Act, which in that part, defines "civil dispute" as meaning a dispute that may result in the commencement of civil proceedings. In my view, the plaintiff's proposed action for damages against Dr Bambit is therefore properly characterised as comprising a civil dispute to which s 56 of the CP Act applies.
For a civil dispute to morph into contested litigated proceedings, it is a requirement that a legal practitioner first certify there are reasonable grounds for believing, on the basis of probable facts, and a reasonably arguable view of the law, that the claim has reasonable prospects of success: s 347(2) of the Legal Profession Act 2004.
A failure on the part of a legal practitioner to certify proceedings according to that requirement has potentially serious consequences for that legal practitioner, as it is capable of being characterised as unsatisfactory professional conduct or professional misconduct, with disciplinary consequences: s 347(1) of the Legal Profession Act 2004.
Accordingly, legal practitioners, as a matter of course, do not lightly and without appropriate investigation, certify merit for the filing of court proceedings of the kind under present contemplation on behalf of the plaintiff. The procedure for preliminary discovery is one such means of investigation in circumstances of uncertainty.
A further constraint on the filing of the type of proceedings contemplated by the plaintiff is the requirement that a person filing a professional negligence claim, including of the kind under present consideration, must serve and file with the statement of claim, an expert's report supporting, amongst other things, any allegations made concerning the alleged breach of duty of care or breach of contractual obligation alleged as professional negligence, together with the general nature of the damage, and the causal relationship alleged to exist between the breaches alleged and the damage claimed: UCPR, r 31.36(1).
In the absence of exceptional circumstances, none of which are evident here, the failure to observe the requirements of UCPR, r 31.36(1) may result in the proceedings filed being dismissed: UCPR, r 31.36(3).
Submissions of the parties
The plaintiff has in effect argued that the documents sought on preliminary discovery are of relevance to an evaluation of her potential claim against Dr Bambit at this stage of their civil dispute. It was submitted that this is so irrespective of whether she has at this stage obtained expert evidence on the surgical procedures that have been performed upon her. In my view, there is considerable force to that argument.
In contrast, on behalf of Dr Bambit, essentially, two principal arguments were advanced. First, that insofar as the application for preliminary discovery against her is concerned, the documents sought to be discovered are submitted to be of no relevance as they relate to a different time frame to the time at which the plaintiff underwent the surgery performed by Dr Bambit. Secondly, it was argued that the documents sought, if produced and disclosed to the plaintiff, would cause prejudice to Dr Bambit in connection with her practice, by attracting unwarranted publicity, and this could be professionally damaging to her.
On behalf of Dr Bambit it was further submitted that an order for the production of the contentious documents by AHPRA was not indicated under of the terms of UCPR r 5.4 because AHPRA is not a party to the proceedings within the meaning of UCPR r 5.4(1).
Dr Bambit's submissions were to the effect that the plaintiff had not made out her claim for preliminary discovery under UCPR r 5.3 or r 5.4.
AHPRA made no submissions on the substantive issues raised by the summons. AHPRA has produced to the court registry an envelope containing papers addressed to the solicitor for the plaintiff. At the specific request of counsel for Dr Bambit, I have not examined the documents forming the contents of that envelope other than to confirm that the papers which have been produced are generally and as a category, in accordance with the plaintiff's request. AHPRA has indicated that it intends to abide by the order of the court if it is determined that the plaintiff's representatives should have access to the requested material that it has produced.
Consideration
The purpose of the procedure of preliminary discovery is to provide a limited means of discovery to enable a party to obtain information necessary either to identify a potential defendant or to determine whether to commence proceedings against a potential defendant, and the process extends to non-parties: Introductory note to Pt 15, UCPR in Ritchie's Uniform Civil Procedure NSW, Butterworths, Lexis Nexis.
Claim for preliminary discovery against Dr Bambit: UCPR r 5.3
In correspondence, the plaintiff has signalled a potential claim framed in alleged breach of duty of care, or negligence, against Dr Bambit: Annexure "G" to the affidavit of Mr Brian Manning Dodd sworn 30 May 2012.
It is clear that in the proceedings contemplated against Dr Bambit, the plaintiff knows the party against whom she wishes to proceed, and she also knows why she wishes to do so. In that regard, she has flagged an action for alleged breach of duty of care. The clinical notes which incorporate the operation note prepared by Dr Bambit, and the consent form signed by the plaintiff, leave little room for doubt as to what procedures were the subject of consent and what procedures were performed upon her, and by whom.
To the extent that the plaintiff seeks to rely upon a cause of action framed in trespass or battery, she also knows the identity of the potential defendant and she knows some of the underlying facts necessary to ground the cause of action. This much also comes from the consent form and the operation note.
In my view, the plaintiff has adequately justified and satisfied the considerations required for the grant of preliminary discovery under UCPR r 5.3 associated with her potential claim against Dr Bambit. This justification is in the form of her claim that, by reason of undertakings given and protective orders made in earlier disciplinary proceedings against Dr Bambit and similar undertakings by Dr Bambit that were in force as at 6 October 2009, in which her skill and competence concerning breast surgery were in issue, there are reasonable grounds for assuming material held by Dr Bambit (and APHRA for that matter), that could assist the plaintiff and her advisors to determine whether the contemplated proceedings framed in tort should be commenced.
A concern expressed in this context is that the plaintiff consented to two operative procedures, namely breast augmentation and upper eyelid lift where the clinical notes establish that there was a pre-operative diagnosis of tuberous breasts and heavy upper eyelids. The operation note records that Dr Bambit performed three operative procedures, namely, bilateral breast augmentation, correction of tuberous breasts and upper blepharoplasty, the latter being the lifting of the upper eyelids which involved excision of excess fat pads in those locations.
The plaintiff's claim that Dr Bambit committed the tort of battery upon her may be capable of being made out because whilst she consented to two surgical procedures, three surgical procedures were in fact performed. No expert evidence has been introduced by either party to suggest that the procedure of breast augmentation also encompasses the procedure for the correction of tuberous breasts. Without expert evidence, I am unable to reach a concluded contrary view that the two procedures so described are in fact one and the same procedure: Strinic v Singh [2009] NSWCA 15.
In determining whether the plaintiff should proceed against Dr Bambit in a claim framed in negligence, through her solicitors, the plaintiff sought to ascertain from Dr Bambit, and from AHPRA, whether, at the time the surgery in question was performed on the plaintiff, there were relevant restrictive undertakings in force and operating as conditions on Dr Bambit's practise between 2007 and October 2009: Exhibit "A", which comprises a letter dated 17 April 2012 from the solicitor for the plaintiff to Dr Bambit.
It is plain that the plaintiff's solicitor's purpose in seeking access to the documents in question is to enable him to appropriately advise the plaintiff of her rights with a view to commencing proceedings based on an alleged breach of duty of care owed: Affidavit of Mr Brian Manning Dodd, sworn 30 May 2012, paragraph 6, Annexure "G"; and Annexure A to the affidavit of Mr Stephen John Dodd sworn 19 June 2012, p 2, 3rd paragraph. This need for advice would also extend to the need to properly particularise any such claim, including by reference to any material held by Dr Bambit (and AHPRA) relating to relevant restrictions on her right to practise.
At the initial hearing of the application on 18 July 2012, Dr Bambit proceeded on the basis that there was no relevant difference between a proposed action in negligence or battery for the purposes of considering this application for preliminary discovery.
Following the conclusion of argument on that date, it was later submitted that on 25 July 2012, a decision of some relevance to this application became available: Dean v Phung [2012] NSWCA 223. At the re-listing of this matter on 8 August 2012 for further argument, the parties made further submissions relating to that decision.
The argued relevance of the decision in Dean v Phung to the matters arising pursuant to the present summons concerns the matter raised by the plaintiff in argument as to whether, in the present case, the consent given by the plaintiff for Dr Bambit to operate upon her, was in some way vitiated by matters not disclosed to the plaintiff at the time such consent was procured: Dean v Phung, at [10].
In Dean v Phung, after reviewing the authorities, Basten JA summarised in four points the position regarding the provision of consent in the context of medical treatment: [60] - [64]. For the purposes of this application I do not need to consider the difference between therapeutic and non-therapeutic treatment having regard to what was said about consent and trespass in the context of medical treatment in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, at [15]. The question of whether there was consent to negative the claimed battery is a factual question to be determined in proceedings where that fact as arises, is an issue to be decided.
A consideration which the plaintiff must resolve is whether or not to bring her claim in trespass. This is of some practical significance by reason of the operation of s 3B(1) of the CL Act 2002. That Act does not apply to the proceedings in trespass, so the other limiting provisions of the CL Act would also have no application: s 5B, s 5D, s 16, s 50.
It is plain that the plaintiff is at the stage of having to determine whether there is a basis upon which her civil dispute with Dr Bambit should be formulated into particularised proceedings filed in court, for which her solicitor must certify merit: s 347 of the Legal Profession Act 2004.
Whilst in Dean v Phung, at [9], Basten JA identified one view that suggested that it was not always necessary to identify "the relevant cause of action", at [10], he also identified the practical purpose of doing so if trespass can be established where conduct on the part of a treatment provider may be said to have vitiated consent. A further practical consideration was also identified, namely, on whom the relevant burden of proof lies, including for establishing a defence of consent, in such circumstances. This is because different schemes of damages apply, comparing assessments made variously under the common law and under the scheme provided by the CL Act.
At this stage of the formulation of the plaintiff's civil dispute with Dr Bambit, no expert opinion has been put forward to indicate which path the plaintiff has elected to take in formulating her claim. It seems to me that this is the very point of her application, namely, through the procedure of preliminary discovery, by obtaining access to materials held by Dr Bambit (as well as by AHPRA), the plaintiff would be very likely to be in a better position to make that election, particularly having regard to what is likely to emerge from the facts, undertakings and practise restrictions published in the QCAT decision involving Dr Bambit.
It therefore seems to me that it is reasonable that the plaintiff have access to the materials sought by the summons in order to evaluate the potential claim and the potential defences, before filing her proceedings. She is at the stage of assembling her cards before deciding on whether to reveal them in the context of properly framed and particularised litigation: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) NSWLR 116, per Young JA at [26].
In relation to the plaintiff's claim for relief pursuant to UCPR r 5.3(1)(a), I am satisfied that it appears that she may be entitled to make a claim against Dr Bambit at least on the recognised legal ground of battery, if nothing else: Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; (2010) 77 NSWLR 506, per McColl JA at [47] - [48]; Morton v Nylex Ltd [2007] NSWSC 562 at [25].
The apparent entitlement of the plaintiff to make a claim framed in battery is more than just an assertion or conjecture in this case. This is because, on the face of the evidence, the plaintiff consented to breast augmentation and was operated upon for the apparently additional procedure of correction of tuberous breasts as well as for breast augmentation, the former being a procedure apparently not covered by the consent form.
At this stage of the preparation of her claim, the plaintiff does not have to show that she has a right to the relief she intends to claim. She must simply satisfy the requirement that there be an "inclination of the mind towards assenting" to the belief that she has a claim: Hatfield v TCN Channel Nine Pty Ltd, per McColl JA at [49].
On the evidence, there is little doubt that the plaintiff consented to one procedure to be performed on her breasts and received the two procedures that have been identified. This compellingly suggests, for the purpose of reaching the required degree of satisfaction on this application, that the additional procedure could be argued to amount to a battery: Hatfield v TCN Channel Nine Pty Ltd, per McColl JA at [50].
In the present case, the plaintiff is in the position of needing to know, before commencing an action in battery, whether there were restrictions on Dr Bambit's practice that would serve to assist in determining whether she should commence an action against Dr Bambit for damages framed in those terms: Hatfield v TCN Channel Nine Pty Ltd, per McColl JA at [51].
I take this view because the terms of the rule under which the plaintiff seeks relief must be construed beneficially and must be given the fullest scope that its language will reasonably allow: Hatfield v TCN Channel Nine Pty Ltd, per McColl JA at [52], following St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147, at 154 [26](d), per Hely J.
For completeness, I should deal with the argument put forward on behalf of Dr Bambit that public disclosure of the material sought by the plaintiff could be professionally damaging to Dr Bambit. In my view that argument should not be accepted. This is because disclosure by way of preliminary discovery is not a public disclosure. It is a very limited one, restricted to the parties and to their lawyers and engaged experts. A failure to observe the restrictions on such disclosure is amenable to court imposed sanctions that guard against improper disclosure. Therefore, I do not accept Dr Bambit's argument on this point.
I find that the plaintiff is therefore entitled to an order against Dr Bambit pursuant to UCPR r 5.3 as claimed.
Claimed discovery against AHPRA: UCPR r 5.4
On behalf of Dr Bambit it was argued that the plaintiff has not made out her case for non-party preliminary discovery under UCPR r 5.4. That submission was based on the decision of White J in Morton v Nylex Ltd [2007] NSWSC 562. The premise of that submission was that there was no "question in the proceedings", as explained by White J, in Morton, at [47], the relevant proceedings for the purposes of the rule, in that case being the proceedings for preliminary discovery.
In my view, this submission should not be accepted for a number of reasons.
First, it appears that the decision in Morton was based on different factual circumstances. That case raised the question of whether matters contained in documents held by a bank could support an action for breaches of the Corporations Act, and is distinguishable from the present case because here, there is evidence that the relevant regulatory authority, AHPRA, holds material that relates to Dr Bambit's practise concerning breast surgery, which is the basis of the plaintiff's civil dispute with Dr Bambit, and that material covers the period in which the plaintiff's potential claim arises. As a regulatory authority, AHPRA is not the same category of third party as was the bank in Morton.
Secondly, the public interest in ensuring safe medical practise according to the requirements of a regulatory authority is served by the records of the regulatory authority being available for inspection by parties with a legitimate interest in inspecting them. Here the legitimate interest of the plaintiff is the decision on whether or not to, or how to, formulate litigation regarding the pursuit of her personal rights against Dr Bambit. I consider that for such a purpose, those advising the plaintiff ought to be enabled to make decisions concerning the relevance to those potential proceedings, of concessions, agreed facts, undertakings and conditions restricting the terms of practise of Dr Bambit over the relevant period.
Thirdly, in the case of Morton, those proceedings were not identified as including the underlying civil dispute of a kind with which the parties are concerned with here. That case did not, unlike the circumstances of this case, in dealing with UCPR r 5.4, involve a consideration of the criteria required by s 56 of the CP Act to the term "proceedings" which should in this case be given a wide and beneficial interpretation to also encompass the civil dispute between the plaintiff and Dr Bambit: St George Bank at p 156; [26](d).
Conclusion
I have concluded, as against each of the defendants, that the plaintiff has made out her entitlement to production of the documents she seeks in order to inspect them for the purpose of determining how she should proceed, or whether, on advice, she should proceed at all. These are the very matters to which the preliminary discovery considerations of UCPR r 5.3 and r 5.4, are directed, aided by the imperative of s 56 of the CP Act, concerning the just, quick and cheap resolution of civil disputes, of which this dispute is one.
Disposition
The applicant plaintiff has succeeded in her claim for entitlement to the production and inspection of the claimed documents. Counsel for Dr Bambit has indicated that his client would seek to test by way of appeal any decision granting the plaintiff access to the documents sought by this summons. Accordingly, I propose to frame my orders to accommodate that stated intention in order to protect Dr Bambit's interests pending the filing and determination of any such appeal.
Costs
In the meantime, it follows from the plaintiff having established her entitlement to the orders sought, that Dr Bambit should pay the plaintiff's costs of the summons on the ordinary basis, unless some other basis of costs entitlement has been shown.
Since AHPRA did not appear on the first hearing date, and can be taken to have submitted to the order of the court at that time, accordingly, I do not propose to make any order concerning any costs that might have been incurred by AHPRA in respect of the summons to that point. As AHPRA has now entered a submitting appearance on the second hearing date, it is entitled to limited costs from the plaintiff in respect of its submitting appearance. As it is apparent that AHPRA's initial resistance to the FOI request made on behalf of the plaintiff was at the instigation of Dr Bambit, I consider that the plaintiff should be indemnified for those costs by Dr Bambit.
Orders
I make the following orders:
(1) Pursuant to UCPR r 5.3 and r 5.4, I order that each of the defendant respondents produce the following documents;
(a) All documents showing or tending to show any restrictions on Dr Bambit's practice from 1 January 2005 to 6 October 2009.
(b) All or any documents in Statement of Agreed Facts and Disputes between the Medical Board of Queensland and Dr Bambit relating to proceedings in the Queensland Civil Administrative Tribunal dated 26 March 2010, as they relate to events that occurred before 6 October 2009.
(c) Any documents showing any restrictions on Dr Bambit's right to practice medicine concerning the carrying out of mastopexy and breast augmentation procedures between late 2005 and the 6 October 2009.
(d) Any undertakings made by Dr Bambit relating to any restrictions on her practice concerning the carrying out of mastopexy and breast augmentation procedures between late 2005 and the 6 October 2009.
(2) Order (1) above is stayed for 28 days pending the first respondent defendant Dr Bambit filing an application for leave to appeal from these orders;
(3) In the event of an application for leave to appeal from those orders being filed by or on behalf of Dr Bambit in the Court of Appeal, the stay which is the subject of order (1) is to continue, pending any further orders made by the Court of Appeal;
(4) In the event no application for leave to appeal from these orders is filed within 28 days, on the expiry of 28 days, the stay which is the subject of order (1) is discharged;
(5) The first defendant respondent Dr Bambit is to pay the plaintiff applicant's costs of the summons on the ordinary basis unless otherwise ordered, such costs to include AHPRA's costs of its submitting appearance on 8 August 2012;
(6) Liberty to apply on 7 days notice if further orders are required.
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Decision last updated: 17 August 2012
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