Cotie v Cox

[2003] NSWSC 4

CITATION:	Cotie v Cox & Anor [2003] NSWSC 4
HEARING DATE(S):	6 December 2002
JUDGMENT DATE:	28 January 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Sperling J at 1
DECISION:	(1) Subpoena dated 25 September 2002 set aside; (2) The plaintiff to pay the second defendant's costs of the second defendant's notice of motion filed on 11 October 2002.
CATCHWORDS:	Practice & Procedure - subpoena - set aside for abuse of process - "fishing" - where attempt to find an alternative case
CASES CITED:	Hennessy v Wright (No.2) (1890) 24 QBD 445 The Commissioner for Railways v Small (1938) 38 SR(NSW) 564
PARTIES :	Spencer Cotie by his tutor Mike Cotie Wendy Louise Cox Mayne Nickless Ltd t/a Prince of Wales Private Hospital
FILE NUMBER(S):	SC 20435/01
COUNSEL:	Ms J Lonergan for the Plaintiff Mr P J Brereton for the Second Defendant
SOLICITORS:	Charlton Shearman Lawyers for the Plaintiff Minter Ellison Lawyers for the Second Defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Professional Negligence List

Sperling J

Tuesday, 28 January 2003

20435/01 Spencer Cotie by his tutor Mike Cotie v Wendy Louise Cox & Anor

Judgment

1 His Honour: The plaintiff claims to have received injury as a result of treatment by Dr W L Cox, the first defendant, while a patient at Prince of Wales Private Hospital which was operated by the first defendant, Mayne Nickless Limited. Dr Cox is a specialist obstetrician-gynaecologist who was retained by the plaintiff’s mother. The injuries are alleged to have occurred in relation to the plaintiff’s birth at the hospital.

2 The plaintiff issued a subpoena dated 25 September 2002 directed to the second defendant, requiring the production of the following documents:

All files and records concerning Dr Wendy Louise Cox’s accreditation and visiting rights for admitting and caring for patients at the Prince of Wales Private Hospital …

3 By notice of motion filed on 11 October 2002, the second defendant has moved to set aside the subpoena.

4 No case has been pleaded against either defendant that Dr Cox was not adequately qualified by training and experience.

5 The subpoena should be set aside for the following reasons.

6 In relation to discovery, but of equal application to subpoenas, Lord Esher MR said in Hennessy v Wright(No. 2) (1890) 24 QBD 445, 448:

In other words, the plaintiff wishes to maintain his questions, and to insist upon answers to them, in order that he may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present. If that is the effect of the interrogatories, it seems to me that they come within the description of “fishing” interrogatories, and on that ground cannot be allowed.

7 In the seminal case relating to subpoenas, The Commissioner for Railways v Small (1938) 38 SR (NSW) 564, Jordan CJ cited that decision with approval. He said (at 575):

[A] party is no more entitled to use a subpoena duces tecum that he his a summons for interrogatories, for the purpose of “fishing”, i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all …

8 That statement is as much applicable to a case in the alternative to that which is pleaded as to whether the party has a case at all.

9 Accordingly, I make the following orders.

(1) Subpoena dated 25 September 2002 set aside.

(2) The plaintiff to pay the second defendant’s costs of the second defendant’s notice of motion filed on 11 October 2002.

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Last Modified: 01/29/2003