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

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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dernee v Zondagh

Details

AGLC: Dernee v Zondagh [2023] NSWDC 192
Case: [2023] NSWDC 192
Decision Date: 09 June 2023

CaseChat Overview and Summary

The plaintiff, Dernee, initiated legal proceedings against Zondagh, alleging professional negligence in veterinary services. The dispute came before the court which had to determine whether a subpoena, directed at a non-party regulatory authority, for the production of documents was valid. The subpoena was central to Dernee's claim as it sought specific documents from the authority, which Zondagh argued should not be disclosed.

The court needed to decide if the subpoena was issued for a legitimate forensic purpose, whether it was oppressive or a fishing exercise, and if the authority was a necessary party to the proceedings. The key issue was whether the subpoena could be set aside as oppressive or a fishing exercise, or if it served a legitimate forensic purpose. Zondagh argued that the subpoena was oppressive and a fishing exercise, while Dernee contended that it was necessary for a legitimate forensic purpose.

The court dismissed the motion to set aside the subpoena. It held that the subpoena was issued for a legitimate forensic purpose, was not oppressive, and did not constitute a fishing exercise. The court found that the documents sought were relevant to the case and necessary for a fair determination of the proceedings. Consequently, the subpoena was upheld, and the motion to set it aside was dismissed. The court also confirmed the case management orders made during the hearing of the motion and ordered that the costs of the dismissed motion be costs in the cause. The parties were granted liberty to apply for further or other orders on seven days' notice.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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