Brown v Latrobe Regional Hospital

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PERSONAL INJURIES LIST

S ECI 2022 00973

BETWEEN:

YALANA REBECCA BROWN and NICHOLAS WILLIAM BROWN	Plaintiffs
v
LATROBE REGIONAL HOSPITAL & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2024
DATE OF RULING:	24 June 2024 (revised)
CASE MAY BE CITED AS:	Brown v Latrobe Regional Hospital
MEDIUM NEUTRAL CITATION:	[2024] VSC 358

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PRACTICE AND PROCEDURE – Release from obligation under s 27(1) Civil Procedure Act 2010 – Release from Harman undertaking - Perez v Reynolds & Anor (Ruling No 2) [2020] VSC 298 - Deputy Commissioner of Taxation v Karas & Ors [2012] VSC 143 – Whether document is to be used for an ulterior or collateral purpose – Consideration of special circumstances.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms J Cowan	Blumers Personal Injury Lawyers
For the First and Second Defendants	Ms F Ellis	K&L Gates

HER HONOUR:

By summons filed on 7 June 2024, the plaintiffs seek that either:
(a)they be released from the Harman undertaking in respect of Document 11 as contained in the first defendant’s affidavit of documents filed 25 October 2023 (‘Document 11’); or in the alternative,
(b)they have leave to provide Document 11 to the Coroner in the inquest COR 2019/1488.
The defendants oppose the application. The defendants are the Latrobe Regional Hospital (‘the hospital’) in which the plaintiffs’ son, Harvey Brown (‘Baby Harvey’) was born and two obstetricians involved in the birth: Dr Pinaki Chavali and Dr Paul Brougham. Dr Chavali and Dr Brougham have given evidence at the inquest.

Submissions and evidence

The parties each made written and oral submissions; it is unnecessary to reiterate them here. I am grateful to both counsel for their assistance.
I read the affidavit of the plaintiffs’ solicitor, Shaynee Ann Dennis, affirmed on 31 May 2024 (the ‘Dennis affidavit’), and the affidavit of the defendants’ solicitor, Alice Margaret Smith, affirmed on 21 June 2024 (the ‘Smith affidavit’).

The coronial inquest

The inquest is the Coronial inquest into the death of Harvey Brown. Baby Harvey is the son of Mr and Mrs Brown, the plaintiffs. He was born on 23 March 2019 at the hospital, and died on 24 March 2019 at the Royal Children’s Hospital. The inquest is part‑heard, and resumes on 24 June 2024 at midday.
Subject to other requirements, per s 67(1) of the Coroners Act 2008, a Coroner investigating a death must find, if possible, the cause of death and the circumstances in which death occurred. Per s 67(3) a Coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice. However, per s 69, the Coroner must not include any statement that a person may be guilty of an offence. Per s 72(2) a Coroner may make recommendations relating to public health and safety or the administration of justice.

This proceeding

In this proceeding, the plaintiffs allege they have suffered injury arising from the circumstances of Baby Harvey’s birth and death. The plaintiffs allege, amongst other things, that Dr Chavali should not have used Neville Barnes forceps to deliver Baby Harvey, used excessive force to do so, and should have delivered him by caesarean section.[1] This proceeding is a medical negligence claim and the plaintiffs seek damages for personal injury. The defendants deny the allegations.
[1]Statement of claim filed 10 May 2023.

Document 11

Document 11 has not been tendered at the inquest.[2] It has been discovered by the hospital in this proceeding.
[2]Dennis affidavit, 27.
Document 11 is exhibited to the Dennis affidavit.[3] It is a letter from Dr Chavali to the Australian Health Practitioner Regulatory Agency (‘AHPRA’) dated 14 June 2019.
[3]Exhibit ‘SAD-7’ to the Dennis affidavit.
Document 11 is Dr Chavali’s response to AHPRA regarding the death of Baby Harvey who died in March 2019. Evidently, AHPRA was conducting an investigation. Document 11 is addressed to the AHPRA investigator and refers to an AHPRA letter dated 2 May 2019. The letter outlines two issues being investigated by AHPRA, namely: whether Dr Chavali undertook an adequate assessment and performed an appropriate delivery of Baby Harvey; and whether Dr Chavali adequately responded to the plaintiffs’ concerns after Baby Harvey’s delivery and following his death.
In Document 11, Dr Chavali’s letter outlines his professional qualifications and experience, and his role at the hospital. Dr Chavali describes his involvement with the birth, and his communications with the first plaintiff in chronological order. Dr Chavali states that he has enclosed a timeline of events based on his reading of the entire clinical record and it is a summary to assist with AHPRA’s investigation. The timeline relates to Baby Harvey’s birth and related events.

Applicable Principles

Section 27 of the Civil Procedure Act 2010 (‘the CPA’) codifies the implied undertaking given to the Court that is commonly referred to as the “Harman undertaking”.[4] Section 27(1) of the CPA obliges parties not to use information or documents produced by another party (as a result of disclosure requirements in s 26) other than in connection with the proceeding in which they were produced. Section 27(3) provides that a person may be released from that obligation by leave of the Court or as agreed by the parties.
[4]See: Perez v Reynolds & Anor (Ruling No 2) [2020] VSC 298, [3] (‘Perez’).
I adopt the summary of principles given by Forbes J in Perez v Reynolds & Anor (Ruling No 2) (‘Perez’)[5] and by J Forrest J in Deputy Commissioner of Taxation v Karas & Ors (‘Karas’).[6]
[5][2020] VSC 298, [6], [8], [9].
[6][2012] VSC 143, [22]–[23], [41]–[43], [56]–[58] (‘Karas’).
The circumstances in Karas are different from those here. It concerned a freezing order and recovery action. However, the general principles are applicable. His Honour applied the reasoning of Chesterman JA in the Queensland Court of Appeal decision of Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4)[7] (‘Northbuild’). In Karas, J Forrest J cited the reasoning of Chesterman JA.[8] In considering whether there was a sufficient connection between two proceedings so that the documents were not used for a collateral or ulterior purpose, Chesterman JA distinguished proceedings where ‘the purpose to which the disclosed documents were put had no connection with the prosecution in which and for which the documents were produced’ and therefore the use was ‘improper and in breach of the implied undertaking…the impugned use can easily be described as ulterior or collateral to the purpose behind the documents’ production’ with the case in which he was considering ‘in which the documents are sought to be used between the same parties and with respect to the same dispute.’ Chesterman JA, also considering circumstances where there was a proceeding with freezing orders held that the documents produced in the freezing order were ‘ancillary to, and an adjunct of, the wider dispute between the parties to be determined by the expert. They were ‘connected’, and each ‘related’ to the other.’ Chesterman JA held: in considering the question of whether ‘documents produced on discovery [are] being used for a purpose unrelated to or unconnected with the proceeding, or litigation’ or ‘for a purpose reasonably necessary for the conduct of the litigation’, the proceeding in question must be analysed and that analysis should not be conducted with ‘any narrow or technical approach.’ Chesterman JA firmly rejected the suggestion that there was any invasion of privacy or confidentiality to using the documents in the manner proposed ‘or for any purpose other than the doing of justice between the parties in the ongoing alternative dispute processes in which they have chosen to engage. The rationale for imposing the undertaking will not be offended by holding that the documents may be used for the cross‑examination.’
[7][2011] 1 Qd R 145, [25]–[55].
[8]Karas, [42].
Two questions arise. First, is the intended use of Document 11 for a collateral or ulterior purpose? Second, do special circumstances exist to release the plaintiffs from the implied undertaking?

Analysis – is the intended use of Document 11 for a collateral or ulterior purpose?

Applying the authorities above, it is necessary to consider whether there is a sufficient connection between this proceeding and the coronial inquest.
The plaintiffs say there is a sufficient connection. The two proceedings are intimately intertwined. They wish to use Document 11 to aid the Coroner in her determination of the circumstances and causes of Baby Harvey’s death. Dr Chavali appeared at the inquest commencing on 31 August 2023.[9] The plaintiffs share the same public interest as the Coroner, that is, for the Coroner to make a fully informed decision about the factual circumstances around Baby Harvey’s birth.
[9]Smith affidavit, 6.
The defendants concede there is an overlap between the proceedings but say they are not sufficiently or intimately intertwined. Cf Karas, the two proceedings are not inextricable. Different laws govern the Coroners Court which will not consider negligence, blame, breach, or liability. The foundational basis is not shared sufficiently to remove the collateral purpose.
The defendants say that the proposed use of Document 11 is for a collateral or ulterior purpose, being to contradict the evidence that Dr Chavali has given to the Coroner. They say that if Document 11 is provided to the Coroner, it will have no impact on this proceeding, and as such the use of Document 11 is therefore for a collateral or ulterior purpose. Further, that any difference between the timeline in that document and in the evidence given by Dr Chavali cannot assist the Coroner. The defendants say that the plaintiffs are attempting to use Document 11 to affect the assessment of Dr Chavali’s credit, and this is an ulterior or collateral purpose. They say there is no forensic utility in granting the application. They say the credit of Dr Chavali is not central to the cause or circumstances of Baby Harvey’s death.
I find that there is a sufficient connection between this proceeding and the inquest for the following reasons.
First, there is a commonality of interested parties. The plaintiffs, Dr Chavali and Dr Brougham are interested parties in the inquest and parties to this proceeding.[10] I assume the first defendant is also an interested party in the inquest.
[10]Dennis affidavit, 18.
Second, a central dispute between the parties is the cause of Baby Harvey’s death. This is the wider issue in dispute between the parties. It is common to both the inquest and this proceeding. This proceeding is not inquisitorial whereas the inquest is. However, common to both proceedings is the factual matrix regarding the circumstances of Baby Harvey’s death and the involvement of the defendants in his birth and death. In this proceeding, the plaintiffs allege injury arising from the circumstances of Baby Harvey’s birth and death. The inquest will consider the circumstances and causes of Baby Harvey’s death per s 67(1) of the Coroners Act 2008.
As counsel explained, there is a question as to when Baby Harvey’s heartbeat commenced deceleration. Was it on the first application of the forcep blades or at the first pull of forceps by Dr Chavali? The plaintiffs say the answer to this question is relevant to whether or not there were already signs of foetal compromise before Dr Chavali began pulling with forceps. The defendants say the Coroner already has sufficient information because of the records that have been provided, and because both doctors have given evidence. The plaintiffs say it is a matter of public interest that the Coroner have all relevant documents.
I find that Document 11 is relevant to answering the question above regarding the deceleration of Baby Harvey’s heartbeat. As outlined above, it provides Dr Chavali’s description of events. I accept Dr Chavali has already given evidence at the inquest.[11] Document 11 was written about three months after Baby Harvey’s death whereas Dr Chavali’s evidence at the inquest was given about four years later. The purpose for which the plaintiffs wish to put that document is for the Coroner to consider as part of the factual findings. I accept that the Coroner already has evidence in the form of CTG contained in the first defendant’s records and those of the Royal Children’s Hospital.[12]
[11]Ibid, 26.
[12]Smith affidavit, 11.
The proposed use of Document 11 is to aid the Coroner in the determination of the circumstances and causes of Baby Harvey’s death. It is plainly relevant to the inquest. It will provide the Coroner with Dr Chavali’s version of events at the time of writing. In Document 11, Dr Chavali describes the deceleration of Baby Harvey’s heartbeat: see, for instance, paragraphs 18–23, 40 of Document 11. (Counsel informed the Court that the Coroner has already been provided with the attached draft clinical summary and timeline. I assume the attached operation report dated 23 March 2019 is already before the Coroner too).
Document 11 may also be relevant to the question of whether there was a discussion with the anaesthetist about using caesarean section as an alternative to vacuum (Kiwicup) delivery. Document 11 does not refer to any such discussion. The plaintiffs’ counsel informed the Court that Dr Chavali gave evidence about such a discussion. This issue is plainly relevant to the circumstances being considered by the Coroner.
I find that the plaintiffs should be allowed to provide Document 11 to the Coroner. It is a matter for the Coroner as to whether Document 11 is accepted. That is, whether it is admissible and if so, its probative value. Per s 62 of the Coroners Act 2008, the Coroner is not bound by the rules of evidence. It will be a matter for the Coroner as to how Document 11 is used, and what impact it has, if any, on the evaluation of other evidence given at the inquest. It is a matter for the Coroner as to whether the document is relevant to the veracity of Dr Chavali’s evidence and if so, whether admission of the letter causes any irremediable prejudice to him and if so, whether that is a factor to take into account and if so, whether other steps can be taken to ameliorate any prejudice. Her Honour will inform herself as she thinks fit per s 62 of the Coroner’s Act 2008. Similarly, it is a matter for the Coroner to consider the context that Document 11 was prepared, namely in response to an AHPRA investigation.
I reject the following submissions of the defendants:
(a)the inquest and this proceeding are not sufficiently connected because one is not foundational upon the other; each is independent of the other.
I find this not the correct test. One proceeding is not required to be foundational. As discussed above, the test is of sufficient connection and that analysis should not be undertaken with a ‘narrow or technical approach.’
(b)admission of Document 11 in the inquest is intended to contradict Dr Chavali’s evidence given at the inquest and therefore will have no impact on this proceeding. As such, it is for a collateral or ulterior purpose.
I find the admission of the document need not have a direct impact on this proceeding. That is an unduly technical approach. The test is of sufficient connection to the proceedings. Even so, if Document 11 is admitted by the Coroner, it may be relevant to answering the wider question common to both proceedings and discussed above.
As a matter of completeness, I should add that upon reflection, it is not necessary to establish how the findings of the coronial inquest will impact this proceeding. As discussed above, the question to which the Court must direct itself is of sufficient connection between the proceedings, not whether one is foundational upon the other. However, I must add it would be artificial to suggest that the findings of the inquest would not affect this proceeding. See Todorvski v Petersville Industries Ltd[13] as an example of how the findings of a Coroner affected the plaintiff’s statement of claim by joining further parties.
(c)Document 11 does not comment on the cause of Baby Harvey’s death and insofar as it provides information relevant to the circumstances of his death, it does so with a focus on the issues identified by AHPRA as part of its investigation.
I agree that Document 11 does not comment on Baby Harvey’s death. However, as discussed above, and as conceded, it does provide information relevant to the circumstances of his death.
[13][1999] VSC 213, [2] – [8].
In conclusion, I find the intended use of Document 11 is not for an ulterior or collateral purpose. The Harman undertaking does not apply. I will make the declaration sought by the plaintiffs.
However, in the event I am wrong, I consider the second question.

Analysis - do special circumstances exist to release the plaintiffs from the implied undertaking?

I find that special circumstances do exist for the following reasons.
(a)there is an overlay in the subject matter of the proceedings, as discussed above. Moreover, the parties are common;
(b)although Document 11 came into existence in response to an investigation from AHPRA, and not inter partes, it is relevant to this proceeding and accordingly has been discovered (thus the plaintiffs became aware of it). As discussed above, I find Document 11 is relevant to the inquest;
(c)document 11 is authored by one of the parties. He opposes the application and says that he will be prejudiced in the inquest proceeding. I am satisfied that the Coroner can take steps to ameliorate the prejudice, if any, of admission of the document. It is a matter for Dr Chavali as to whether he wishes to raise any issues with the Coroner given that he has already given his oral evidence; and
(d)I accept that Dr Chavali provided the document to AHPRA on a confidential and voluntary basis. I make no finding as to whether Dr Chavali expected it to enter the public domain. The document was created before the litigation but is not privileged. It has been discovered and is likely to enter the public domain in the course of evidence in this proceeding. It is on the cards that Dr Chavali will be cross‑examined about the document in the course of the trial in this proceeding. It is a matter for the Coroner as to how Document 11 is used, if at all, during the inquest, and whether it enters the public domain. The Coroner has the power to place conditions on the release of documents obtained during the coronial investigation: Exhibit ‘SAD‑6’ to the Dennis affidavit provides an example of such a notice in respect of the inquest.
Provision of the document to the Coroner is consistent with the overarching purpose of the CPA. I accept the plaintiffs’ submission that there is a possibility that if Document 11, clearly a relevant document, is not provided to the Coroner, then it is on the cards that an application may be made per s 77 of the Coroners Act 2008 to re‑open on the basis that there is a new fact and circumstance to be taken into account. Allowing the plaintiffs to provide Document 11 to the Coroner in the inquest proceeding reduces the risk of a s 77 application being made based on Document 11. Reducing this risk is consistent with the CPA’s overarching purpose. Whether such an application may be successful is another matter, and, as I have stated, once the document is provided to the Coroner, it is a matter for Her Honour to decide whether it is admissible.

Conclusion

In conclusion, it is in the interests of justice that the Coroner be provided with Document 11.
I will make the following declaration:
The plaintiffs’ provision of Document 11 to the Coroner in inquest COR 2019/1488 is not in breach of ss 27(1) and (2) of the Civil Procedure Act 2010 or the implied undertaking commonly referred to as the Harman undertaking.

SCHEDULE OF PARTIES

S ECI 2022 00973
BETWEEN:
YALANA REBECCA BROWN	First Plaintiff
NICHOLAS WILLIAM BROWN	Second Plaintiff
- v -
LATROBE REGIONAL HOSPITAL	First Defendant
PINAKI CHAVALI	Second Defendant
PAUL BROUGHAM	Third Defendant

[2024] VSC 358

24 June 2024 (revised)