Bentvelzen v Wyndham-Plus Pty Ltd (t/a Wyndham Health Care) (Ruling)
[2016] VCC 1240
•30 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-02354
| DAVID BENTVELZEN | Applicant |
| v | |
| WYNDHAM-PLUS PTY LTD (trading as WYNDHAM HEALTH CARE) | Respondent |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 August 2016 | |
DATE OF RULING: | 30 August 2016 | |
CASE MAY BE CITED AS: | Bentvelzen v Wyndham-Plus Pty Ltd (t/a Wyndham Health Care) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1240 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Discovery – application for pre-litigation discovery to obtain copy of medical records relating to applicant’s late de facto wife in order to investigate potential medical negligence claim – respondent’s insurer refusing to supply records
Legislation Cited: County Court Civil Procedure Rules 2008, Order 32.05; Health Records Act 2011; Supreme Court (General Civil Procedure Rules) 2015, Order 32.05
Cases Cited: Sankey v Whitlam & Ors (1978) 142 CLR 1; Alister & Ors v R (1983) 154 CLR 404; Australian Red Cross Society v BC (07/03/1991, VicAD No 5065 of 1990; BC v Australian Red Cross Society [1991] VSC 68; NJ v Australian Red Cross Society; NN v Australian Red Cross Society (unreported, Hedigan J, VSC, No 6498 and 6928 of 1994, 26 June 1996); Royal Women’s Hospital v Medical Practitioner’s Board of Victoria (2006) 15 VR 22; Orora Ltd v Asahi Holdings (Australia) Pty Ltd [2015] VSC 749; Alphapharm Pty Ltd v Eli Lilly Australia Pty Limited [1996] FCA 1500; United Energy Ltd v Energy Risk Management Pty Ltd [1998] VSC 133; St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; 211 ALR 147; Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; (2010) 77 NSWLR 506; Glezer v Deals.com.au & Ors [2014] VSC 202; BJ Bearings Pty Ltd v Whitehead [2016] VSC 44; Australian Football League v Stadium Operations Limited [2009] VSC 264; Beston Parks Management Pty Ltd v Sexton [2008] VSC 392; Grocon Constructors (Vic) Pty Ltd v Biosciences Research Centre Pty Ltd [2014] VSC 204; Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2008) 249 ALR 495
Ruling: Further hearing of the application adjourned to enable applicant’s solicitors to provide further material to establish the potential or prospects of the elements of each aspect of the claim.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N Mann | Slater & Gordon Ltd |
| For the Respondent | No appearance | - |
HIS HONOUR:
1 This is an application by Mr David Bentvelzen, for pre-litigation discovery[1] to obtain a copy of the medical records relating to his late de facto wife, Ms Colleen Bosworth. No proceeding has yet been issued. Although served with a copy of the Summons, there was no appearance on behalf of the respondent, Wyndham-Plus Pty Ltd (“Wyndham Plus”).
[1]County Court Civil Procedure Rules 2008 (“the Rules”), Order 32.05
2 The affidavit of Mr Bentvelzen’s solicitor, Nicolas Matthew Mann, affirmed 1 March 2016 (“the affidavit”), filed in support of the application, provides the following relevant information:
3 Mr Bentvelzen is the de facto widower of Ms Colleen Bosworth. He seeks her medical records (“the records”) in order to investigate a potential claim, that her treatment in the period leading up to her death on 21 June 2014 was negligent, which resulted in him suffering a psychological injury. Ms Bosworth was treated at Wyndham Health Care, a medical clinic (“the clinic”) owned and operated by the respondent, prior to her death.
4 Requests, as detailed in the affidavit, have been made for the records by Mr Bentvelzen, by the daughter of the deceased, and by Mr Mann.
5 Avant Mutual Group, the insurer for Wyndham Plus, in refusing to supply the records, relied on s95(2) of the Health Records Act 2011, which provides:
“(2)Subject to subsection (3), if an individual has died, a right or power conferred on individuals by a provision of this Act [to access medical records] is exercisable in relation to the deceased individual, so far as the circumstances reasonably permit, by a legal representative of the deceased individual.”
6 “Legal representative” is defined in s3 to mean:
“legal representative, in relation to a deceased individual, means a person—
(a)holding office as executor of the will of the deceased individual where probate of the will has been granted or resealed in Victoria or any other State or Territory; or
(b)holding office in Victoria or any other State or Territory as administrator of the estate of the deceased individual.”
7 Ms Bosworth died intestate. Mr Bentvelzen has not obtained letters of administration as all assets were jointly held by himself and Ms Bosworth at the time of her death, and thus passed to him without the need for formal administration.
8 In order to determine whether an order for preliminary discovery ought be made, the following legal issues emerge from a consideration of the relevant authorities and legislation:
(a) whether the public interest in maintaining the confidentiality of the records outweighs the rights of the applicant to pursue litigation in the interest of justice;
(b) whether the pre-hearing discovery process can circumvent legislative preference for maintaining the confidentiality of the records;
(c) whether the Court can exercise its discretion under O 32.05 of the Rules, in favour of the applicant to enable him to gain access to the records.
Does the public interest in maintaining the confidentiality of the records outweigh the right of the applicant to pursue litigation in the interest of justice?
9 An important theme in judgments which permit discovery of information which would otherwise be confidential, is the often cited balancing exercise of Gibbs J in Sankey v Whitlam & Ors:[2]
“… although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure forever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection – the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made. … .”[3]
(emphasis added).
[2](1978) 142 CLR 1 (“Sankey”)
[3]Sankey (ibid) at paragraph [45] (per Gibbs ACJ)
10 In Alister & Ors v R,[4] Gibbs J further said:
“Sankey v Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process – the balancing exercise – can only be taken when it appears that both aspects of the public interest do require consideration - ie, when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. … .”[5]
[4](1983) 154 CLR 404 (“Alister”)
[5]Alister (ibid), paragraph [4]
11 For a court to order the disclosure of medical information, the public interest in favour of disclosing the information must outweigh the public interest considerations against such disclosure.[6]
[6]See: Australian Red Cross Society v BC (07/03/1991, VicAD No 5065 of 1990 (McGarvie and Gobbo JJ)); BC v Australian Red Cross Society [1991] VSC 68 (Cummins J); NJ v Australian Red Cross Society; NN v Australian Red Cross Society (unreported, Hedigan J, VSC, No 6498 and 6928 of 1994, 26 June 1996)
12 In BC v Australian Red Cross Society,[7] Cummins J held that a six-year-old girl who had contracted the HIV virus after a number of blood transfusions was entitled to the name and address of the person who donated the infected blood. Given that the release of the confidential information was limited and under judicial control, Cummins J found that the disclosure would not likely jeopardise the public interest in the supply of blood. On appeal, Gobbo and McGarvie JJ upheld the decision and found that the public interest in the administration of justice predominated over the public interest relied on by the Red Cross.[8] The Court accepted that Cummins J had correctly applied the test stated by Gibbs CJ in Alister.[9]
[7]Supra
[8]BC v Australian Red Cross Society (ibid) at 15
[9]Australian Red Cross Society v BC (supra) at 14 – 15
13 In NJ v Australian Red Cross Society; NN v Australian Red Cross Society,[10] the plaintiffs received blood transfusions of blood supplied by the defendant. The blood was infected with the Hepatitis C virus. The plaintiffs sought discovery of information about the blood donors. Hedigan J said:
“The plaintiff has allegedly acquired a serious infection and seeks to obtain information which the Courts would not in ordinary circumstances deny to an injured plaintiff, namely details which would arguably enable the plaintiff to advance the case or so weaken it that an informed decision can be made as to whether or not it should be proceeded with. In this case that information involves the name and address of the donor, the plaintiff desiring to interview the donor, if the donor agrees and to inspect the donor's medical records. Both of these courses are sought to be followed to enable the plaintiff to discover what the donor was told by the defendant prior to giving the donor blood, what the donor's understanding was, what the donor's medical history was and whether or not the donor fell into a societal group, which, if the defendant had been aware of it, might have led to the exclusion of the donor on the basis of the class of persons giving blood.
The countervailing consideration is that the defendant has a legitimate concern that the vital source of donated blood supply may, as a continuing and voluntary activity in this country, be inhibited if donors believe that their blood donation is not preserved as anonymous. … .”[11]
[10]Supra
[11]NJ v Australian Red Cross Society; NN v Australian Red Cross Society (supra), paragraphs [10] – [11]
14 Hedigan J ordered that the Australian Red Cross name two people who had donated the blood which was infected with the Hepatitis C virus, subject to certain protections set out in the order (such as an undertaking that the donors would not be sued and that the plaintiffs’ legal advisors would not convey information about the donors to others without leave of the Court). Hedigan J said:
“Additional to the interest of the plaintiff, and the public interest issue sought to be raised by the defendant, there is the interest of the system of the administration of justice in not inhibiting the right of a plaintiff to have access to relevant material in pursuit of a legitimate claim for damages.”[12]
(emphasis added).
[12]NJ v Australian Red Cross Society; NN v Australian Red Cross Society (supra), paragraph [12]
15 The public interest in the administration of justice and the private rights of the plaintiff were held by Hedigan J to predominate over the public interest relied upon by the Red Cross.[13]
[13]NJ v Australian Red Cross Society; NN v Australian Red Cross Society (supra), paragraph [15]
16 In blood donor cases, given that the supply of blood for medical treatment has an important public benefit, those cases clearly raise the question whether discovery of certain medical information (which would otherwise be confidential) would jeopardise the supply of blood. It is difficult, however, to see how the discovery of certain medical information of a (now deceased) private citizen by his or her de facto partner can pose similar potential harm to the public interest.
17 In Royal Women’s Hospital v Medical Practitioner’s Board of Victoria,[14] a hospital was required to make a patient’s records available to the Medical Practitioners Board for examination, without the consent of the patient. This demonstrates the threshold problem for a party who wishes to argue that public interest considerations favour withholding medical records from production.
[14](2006) 15 VR 22
18 Based on the authorities discussed above, the balancing exercise, in my view, is weighted in favour of the applicant, as giving him access to his deceased de facto partner’s medical records in preliminary discovery would not likely give rise to the risk of public harm sufficient to outweigh his right to sue.
Secondly, can the discovery process circumvent the expressed legislative preference for maintaining the confidentiality of medical records?
19 Section 95 of the Health Records Act 2001 provides that only a legal representative (executor of the will or administrator of the estate of the deceased) has a right to access the records of a deceased person. However, the section does not explicitly prohibit the discovery of medical records in litigation.
20 In Sankey, Gibbs J held that determining what records should and should not be discovered in litigation is not the privilege of the executive government but the duty of the court:
“… It is in all cases it is the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. … .”[15]
[15]Sankey (supra) at 38, cited in Royal Women’s Hospital v Medical Practitioner’s Board of Victoria (supra), paragraph [16]
21 Where there is a tension between legislative preference for confidentiality of medical records and disclosure in litigation, the question of whether the records should be disclosed through discovery will depend on the outcome of the balancing exercise.
22 In NJ v Australian Red Cross Society; NN v Australian Red Cross Society,[16] Hedigan J said:
“… Notwithstanding that … statute provisionally declares a legislative preference for confidentiality, once the plaintiff raises relevant considerations, on appropriate material, to indicate that he or she would be at a forensic disadvantage if excluded from material which normally could be accessed, then the task of the Court, that is, to embark upon the balancing exercise, must be carried out. … .”[17]
[16]Supra
[17](supra), paragraphs [15] – [16]
23 The outcomes in BC and NJ demonstrate that a third party’s information held in medical records can be disclosed in litigation where the litigant’s private rights to sue or the public interest in the administration of justice outweighs the public interest in maintaining the confidentiality of the information. This appears to be so even where there is no statutory right to access the information and even where statute may prefer the confidentiality of such information.
24 Although it is not explicit from Mr Mann’s affidavit what assistance the records are likely to provide to the applicant’s potential claim, I accept Mr Bentvelzen may be at forensic disadvantage if excluded from accessing the records. In applying the balancing test, the disclosure of medical records of Ms Bosworth to Mr Bentvelzen is unlikely to cause harm to the public interest, and to withhold the documents frustrates the administration of justice.
Can the Court exercise its discretion under Order 32.05 of the Rules in favour of the applicant to enable him to gain access to the records?
25 Preliminary discovery or pre-litigation discovery is not an automatic right. An applicant must apply for an order for discovery to be made by a court. Order 32.05(3) concerns discovery from a prospective defendant, and provides:
“Where—
(a)there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained;
(b)after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and
(c)there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in that person's possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision—
the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).”
26 The courts have developed a number of principles which are relevant to the question. The Supreme Court has considered Order 32.05 of the Supreme Court (General Civil Procedure Rules) 2015, which is identical to Order 32.05 of the Rules.
27 Some of the principles which have been held to apply to a court’s discretion to make a preliminary discovery order have been usefully summarised by Ierodiaconou AsJ in Orora Ltd v Asahi Holdings (Australia) Pty Ltd:[18]
[18][2015] VSC 749
“(a) The rule should be construed benevolently, because it is intended to assist an applicant who does not have sufficient, precise information to commence a proceeding, and to prevent the bringing of speculative suits. This is also consistent with modern case management principles in the Civil Procedure Act 2010.
(b) The rule ‘must be given the fullest scope its language will reasonably allow.’
(c) The applicant need not identify a cause of action precisely. It is sufficient to identify facts which may reasonably give rise to a right to obtain relief.
(d) A ‘flimsy foundation’ or ‘mere hunch’ is insufficient to constitute a reasonable cause of action.
(e) ‘An applicant does not have to prove that there will be, only that there may be, a real benefit from making the order.’
(f)‘The benefit may be the drawing of an appropriate pleading with proper particulars and the avoidance of substantial amendment after discovery, or, alternatively, the possible avoidance of unnecessary and fruitless litigation.’
(g) The benefit may be ‘to determine the extent of the respondent’s breach and the likely quantum of any damages award.’
(h) ‘The ‘reasonable cause to believe’ requirement is primarily concerned with whether, as an objective fact, an applicant has sufficient information to decide whether to commence proceedings. So, an application cannot succeed if the applicant has sufficient information (assessed objectively), but where the inability to determine whether to commence proceedings arises, for example, due to an overly indecisive or cautious nature.’
(i) If the applicant has decided to commence proceedings, it will be fatal to the application.
(j) ‘The existence and content of legal advice has no bearing on the question of whether the test in r 32.05 has been made out.’
(k) The rule is a discretionary one.”[19]
[19]Orora Ltd v Asahi Holdings (Australia) Pty Ltd (ibid), paragraph [31]
28 Whether a preliminary discovery order can be made is ultimately a question to be determined upon the facts and circumstances of the particular case. The above principles are not exhaustive; other cases have referred to the principles to be applied when a court exercises its discretion to make preliminary discovery orders.[20] Importantly, an “applicant for preliminary discovery is entitled to be cautious before making a decision to embark upon costly litigation”[21] and therefore seek further information before deciding whether to sue.[22]
[20] Alphapharm Pty Ltd v Eli Lilly Australia Pty Limited [1996] FCA 1500, paragraph [41]; United Energy Ltd v Energy Risk Management Pty Ltd [1998] VSC 133, paragraphs [29]–[44]; St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; 211 ALR 147 at 153–4, paragraph [26]; Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; (2010) 77 NSWLR 506 at 520-1, paragraphs [47]–[52]; Glezer v Deals.com.au & Ors [2014] VSC 202, paragraphs [16]–[26]; Orora Ltd v Asahi Holdings (Australia) Pty Ltd (supra), paragraph [31], cited in BJ Bearings Pty Ltd v Whitehead [2016] VSC 44, paragraph [17]
[21] BJ Bearings Pty Ltd v Whitehead (supra), paragraph [19]
[22] See: Australian Football League v Stadium Operations Ltd [2009] VSC 264, paragraphs [60]-[62].
29 The clinic is likely to possess the records which may determine whether or not Mr Bentvelzen has the right to obtain relief. Therefore, Order 32.05(b) and (c) will likely be satisfied. It is less clear that Order 32.05(a), which requires that there is “reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court” from the clinic, is satisfied.
30 A “reasonable cause” must be based on more than a “flimsy foundation” or “mere hunch”. While the hurdle concerning what constitutes a “reasonable cause” seems quite low,[23] “… the discretion will not be exercised as of right, especially in circumstances where an applicant does not have a strong case”.[24]
[23] See: Grocon Constructors (Vic) Pty Ltd v Biosciences Research Centre Pty Ltd [2014] VSC 204, paragraphs [42]-[44]
[24] Australian Football League v Stadium Operations Ltd (supra), paragraph [78]
31 In Australian Football League v Stadium Operations Ltd,[25] Warren CJ said:
“While the rule should be given the fullest scope its language will reasonably allow, a flimsy foundation will not be sufficient; it cannot constitute reasonable cause within the plain meaning of the rule.
Whether there is reasonable cause to believe under subparagraph (a) of the rule is determined on an objective test. The requirement to be established is a reasonable cause to believe that the applicant has or may have a right to relief, not a conclusion that a prima facie case in fact exists. This question is informed by examining the various elements of the potential cause of action and coming to a determination about whether there is a reasonable cause to believe that each of the necessary elements exist.”[26]
(citations omitted).
[25]Supra
[26]Australian Football League v Stadium Operations Ltd (ibid), paragraphs [85]–[88]
32 Warren CJ said, “it is not sufficient for … [an applicant] … to point to a mere possibility that it may have a claim”.[27]
[27]Australian Football League v Stadium Operations Ltd (supra), paragraph [90]
33 There are two aspects to Mr Bentvelzen’s claim. The first is that there has been want of care in the treatment of Ms Bosworth by medical practitioners or other health professionals in the employ of the clinic which was a cause of her death; the second is whether, as a result of her death, Mr Bentvelzen suffered “nervous shock”. The question thus is whether there is reasonable cause to believe that each of the elements of a potential claim might exist and whether evidence before the Court inclines the mind towards the matter of fact in question.[28] Although in Beston Parks Management Pty Ltd v Sexton,[29] it was noted that “[i]t is not necessary to show precisely what cause of action the applicant may have,” the courts emphasise that whether the elements of a cause of action exist is an important indicator of whether there is a “reasonable cause” within the meaning of Order 32.05(a).
[28]See: Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2008) 249 ALR 495, paragraph [48]; Grocon Constructors (Vic) Pty Ltd v Biosciences Research Centre Pty Ltd (supra), paragraph [55]
[29][2008] VSC 392
34 Where there is “no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action”.[30]
[30]Australian Football League v Stadium Operations Ltd (supra), paragraph [88]; St George Bank Ltd v Rabo Australia Ltd (supra), paragraph [26]
35 The evidence produced in the application in support of reasonable cause is limited.
36 The only reference in Mr Mann’s affidavit to any basis upon which the elements of the medical negligence claim may be made out is the following:
“Prior to her death the deceased was treated at Wyndham Health Care, a medical clinic owned and operated by the Respondent. The treatment provided by the respondent’s clinic is the object of the applicant’s enquiry.”[31]
[31]Affidavit of Nicholas Mann, paragraph [3]
37 This is more suggestive of the investigation of a mere possibility of a claim. There is no suggestion as to how the treatment by practitioners at the clinic may have been related to her death. Further, there is no reference to “nervous shock” or psychological injury which Mr Bentvelzen may have suffered, and the circumstances in which that arose. Absent any such information, there is no material before the Court as to how any part of the cause of action could be made out. At this point the foundation for the potential claim is flimsy and speculative.
38 In the interests of justice, I will adjourn the further hearing of this application to enable Mr Bentvelzen’s solicitors to provide further material to establish the potential or prospects of the elements of each aspect of the claim. The hearing will resume when that information is to hand.
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