Dernee v Zondagh

[2023] NSWDC 192

District Court

New South Wales

Medium Neutral Citation:

Dernee v Zondagh [2023] NSWDC 192

Hearing dates:

7 June 2023

Date of orders:

09 June 2023

Decision date:

09 June 2023

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. The defendant applicant’s notice of motion filed on 29 March 2023 seeking to set aside a subpoena for non-party production of documents is dismissed;

2. The costs of the dismissed motion are to be costs in the cause;

3. The case management orders made in the course of the hearing of the motion are confirmed;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

PRACTICE & PROCEDURE – professional negligence – veterinary – dismissal of notice of motion seeking an order for the setting aside of a subpoena addressed to a non-party regulatory authority for the production of relevant documents – legitimate forensic purpose – not oppressive – not fishing

Legislation Cited:

Civil Liability Act 2005 (NSW), s 50

Evidence Act 1995 (NSW), s 136

Cases Cited:

Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Portal Software International Ltd v Bodsworth [2005] NSWSC 1115

R v Saleam [1989] 16 NSWLR 14

Category:

Procedural rulings

Parties:

Anita Dernee (Plaintiff/respondent)
Matthew Zondagh (Defendant/applicant)

Representation:

Counsel:
Ms E Dalrymple (Plaintiff/respondent)
Ms L Cooper-Hackman (Defendant/applicant)

Solicitors:
Dillon-Smith Lawyers (Plaintiff/respondent)
Barry Nilsson (Defendant/applicant)

File Number(s):

2022/92556

Publication restriction:

None

Judgment

1. In this contested interlocutory application the defendant applicant seeks to have set aside a subpoena issued on behalf of the plaintiff respondent seeking the production of documents by a non-party regulatory authority.

2. The substantive proceedings are brought by the plaintiff, Anita Dernee, the owner of two now deceased dressage horses, against the defendant, Matthew Zondagh, an equine veterinarian, claiming compensatory damages for alleged negligent breach of duty of care, and for alleged breach of contract, in respect of the defendant’s injection treatment and post-injection management of the plaintiff’s horses, claiming that such alleged breaches caused the death of those horses.

3. The defendant has denied he was negligent and he has denied the alleged breach of contract. He has pleaded a statutory defence relying on s 50 of the Civil Liability Act 2005 (NSW) (“CL Act”) claiming that in his treatment of the plaintiff’s horses, he had acted in a way that was widely accepted by peer professional opinion and competent professional practice. If that sheltering defence is established, it would operate as a complete answer to the plaintiff’s claim.

4. On 23 March 2023, in seeking to test and meet that defence, including by seeking to mount a tendency case that if proven, would disapply that defence, the plaintiff issued a subpoena to the Proper Officer of the Veterinary Practitioners Board of New South Wales seeking the production of the following documents:

“1.   …

2.   All notifications of complaint, reports, statements and other documents in your possession containing any information relating to complaints made with respect to Matthew Zondagh between 1 January 2017 and 1 March 2023.

3.   A copy of any decision relating to complaints relating to Matthew Zondagh between 1 January 2017 and 1 March 2023.”

5. The period identified in the schedule to the subpoena is concordant with the time frame in which the defendant had provided professional services in respect of the plaintiff’s horses.

6. On 29 March 2023, the defendant filed the present strike-out notice of motion seeking orders as follows:

“1   Pursuant to Rule 33.4 of the Uniform Civil Procedures Rules 2005 (NSW), Subpoena to Produce addressed to the Proper Officer of the Veterinary Practitioners Board of NSW filed on 20 March 2023 be set aside.

2   The parties are precluded from accessing or viewing any documents produced pursuant to subpoena by the Veterinary Practitioners Board of NSW until this Notice of Motion has been determined.

3   The Plaintiff to pay the Defendant’s costs of this Motion.

4   Any other Orders that the Court deems appropriate.”

7. The defendant applicant claims the subpoena in question is lacking in a legitimate forensic purpose and amounts to an impermissible exercise in fishing for evidence.

8. In contrast, the plaintiff respondent maintains the subpoena in question has a legitimate forensic purpose that relates to the defence pleaded pursuant to s 50 of the CL Act.

9. The defendant applicant’s motion was heard on 7 June 2023. The parties provided a concisely assembled joint Court Book and focussed written submissions.

10. The defendant applicant’s evidence on the motion comprised the affidavit of Carmen Sainsbury, solicitor, affirmed 29 March 2023, the affidavit of Lurline Dillon-Smith, solicitor, affirmed 28 April 2023, and the defendant’s own affidavit filed on 20 February 2023.

11. Aspects of Ms Sainsbury’s affidavit were read subject to a limiting order made pursuant to s 136 of the Evidence Act 1995 (NSW) in relation to material that essentially comprised submissions.

12. The plaintiff respondent’s evidence on the motion comprised her own affidavits affirmed on 21 March 2023 and 31 March 2023.

13. Neither deponent was required for cross-examination.

14. A significant element of the context for this dispute is that the defendant applicant’s claim of having acted in accordance with his “usual practice” and having employed standard “post-procedure treatment” is made in circumstances where he has not provided any notes or records to support the basis and the detail of his treatment of the subject horses.

15. This is in circumstances where the evidence reveals that the defendant applicant bases a material part of his defence on his factual claim: “I do about 1000 of these injections a year and I have never had any problems”.

16. In light of that history, in my view, the documents sought by the plaintiff’s subpoena could “possibly throw light” upon and assist with a response to the defence pleaded pursuant to s 50 of the CL Act. It is “on the cards” that this would be so, especially where issues of credit are to be raised as has been flagged in the course of submissions. The apparent relevance of the material sought relates to the tendency question: Secretary of theDepartment of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, at [65]; Portal Software International Ltd v Bodsworth [2005] NSWSC 1115, at [25]; R v Saleam [1989] 16 NSWLR 14, at p 20D-E; p 21E-F.

17. It is plain that the plaintiff respondent is seeking to test the credibility of the pleaded defence particularly in relation to the defendant’s claim as to his manner of practice, thus raising a tendency argument for consideration. On that basis, the plaintiff respondent maintains the documents sought by the subpoena are relevant, and therefore the subpoena should not be seen to be oppressive as it does not involving impermissible fishing. I accept that submission.

18. It follows that the plaintiff respondent has a legitimate forensic purpose as a basis for issuing the subpoena which the defendant applicant seeks to have set aside. I find that the subpoena is not oppressive and does not amount to a fishing exercise.

19. In view of the relatively recent timing of the emergent tendency argument, I consider the appropriate order for costs of the motion to be costs in the cause.

Orders

20. I therefore make the following orders:

1. The defendant applicant’s notice of motion filed on 29 March 2023 seeking to set aside a subpoena for non-party production of documents is dismissed;

2. The costs of the dismissed motion are to be costs in the cause;

3. The case management orders made in the course of the hearing of the motion are confirmed;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 09 June 2023