Giblin v Beach - [2001] NTSC 67

Giblin v Beach [2001] NTSC 67
PARTIES:EDWARD PAUL TREVOR GIBLIN

v
RONALD JOHN BEACH

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE MASTER
FILE NO:183 of 2000 (20020403)
DELIVERED:  9 August 2001
HEARING DATE:  2 August 2001
JUDGMENT OF:  BAILEY J
REPRESENTATION:
Counsel:
Appellant:S Southwood QC
Respondent:  Not represented
Solicitors:
Appellant:Morgan Buckley
Respondent:
Judgment category classification:    C
Judgment ID Number:  bai0106
Number of pages:  8

bai0106
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Giblin v Beach [2001] NTSC 67
No. 183 of 2000 (20020403)

BETWEEN:
EDWARD PAUL TREVOR GIBLIN

Appellant
AND:
RONALD JOHN BEACH

Respondent

CORAM: BAILEY J
REASONS FOR JUDGMENT
(Delivered 9 August 2001)

In these proceedings, the plaintiff (respondent) is seeking damages from the defendant (appellant), a medical practitioner, arising from the alleged negligence of the defendant in failing to diagnose in a timely manner that the plaintiff was suffering from a condition which was likely, and in fact did, develop into bladder cancer.

On 11 May 2001, the defendant filed four subpoenas for production seeking medical records of the plaintiff for defined periods. The subpoenas were directed to the following persons and related to the following periods:
(a)The Registrar, The Repatriation Hospital, Daw Park, South Australia: 1 November 1998 to 31 December 1998;
(b)Mr Graham Sinclair, Wayville, South Australia: 5 November 1998 to 18 March 2000;
(c)Dr D C Cambell, Darwin Private Hospital: 16 July 1998 to 22 October 1998; and
(d)Dr A McDonald, Malak Square Medical Centre: 18 February 1999 to 31 May 2001
Each of the four subpoenas was returnable at Darwin at 9.30 am on 31 May 2001.
With the exception of the subpoena addressed to Dr McDonald, the subpoenas had been answered by lodgment of the relevant medical records with the Registrar of the Supreme Court by at least 14 June 2001 when the matter came before the Master.
The plaintiff had no objection to the defendant having access to the subpoenaed material (subject to being allowed seven days prior inspection to identify and notify any claims for privilege with respect to any of the documents).
On 14 June 2001, the Master refused to make orders for inspection of the subpoenaed documents in favour of the plaintiff and the defendant. The Master ordered that the four subpoenas be dismissed and any documents produced be returned to the persons who produced them.
The defendant appealed against the decision of the Master.
On 2 August 2001, after hearing submissions from Mr Southwood QC on behalf of the defendant, I set aside the orders of the Master made on 14 June 2001 and granted liberty to the defendant to issue subpoenas for production of the relevant medical records to the four persons referred to above with a return date of 30 August 2001. I indicated that I would prepare written reasons in due course and now seek to do so.
I note that the plaintiff was not represented at the appeal. The plaintiff’s solicitor had indicated…

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 Giblin v Beach

Details

AGLC: Giblin v Beach [2001] NTSC 67
Case: [2001] NTSC 67
Decision Date: 9 August 2001

CaseChat Overview and Summary

In this case, the plaintiff, Edward Paul Trevor Giblin, is seeking damages from the defendant, Ronald John Beach, a medical practitioner, due to an alleged failure to diagnose bladder cancer in a timely manner. The defendant appealed the decision of the Master, who dismissed four subpoenas for production that the defendant had issued seeking medical records of the plaintiff. The defendant sought to appeal the Master's decision on the grounds that the subpoenas were not a fishing expedition, but rather a necessary step to secure relevant medical records for the closed pleadings in an advanced stage of the proceedings.

The legal issues that the court was required to decide were whether the subpoenas were appropriately issued and whether they were returnable on a date other than a date fixed for a hearing. The court examined the relevant rules and case law to determine the appropriate use of subpoenas and whether they could be returnable on a date other than a hearing date. The court considered the case of Mamone v Gagliardi, where the use of subpoenas for a fishing expedition was rejected, but noted that the present case was different as the subpoenas were not a fishing expedition but rather a necessary step to secure relevant medical records for the closed pleadings in an advanced stage of the proceedings.

The court concluded that the subpoenas were appropriately issued and that the return date did not have to be a date fixed for a hearing. The court set aside the orders of the Master and granted liberty to the defendant to issue the subpoenas with a return date of 30 August 2001. The court granted leave to the defendant to extend time within which to appeal the Master's decision, as no prejudice was suffered by the defendant as a result of the late appeal and the plaintiff was content to abide the outcome of the appeal. The court noted that the use of subpoenas in this case was not an abuse of process and that the subpoenas were not a fishing expedition but rather a necessary step to secure relevant medical records for the closed pleadings in an advanced stage of the proceedings. The court ordered that the four subpoenas be returned to the persons who produced them and that the defendant be granted liberty to issue the subpoenas with a return date of 30 August 2001.

Orders