Ginbey v Minister for Education - [2009] WADC 37

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: GINBEY -v- MINISTER FOR EDUCATION [2009] WADC 37

CORAM: DEPUTY REGISTRAR HARMAN

DELIVERED : 18 MARCH 2009

FILE NO/S: CIV 221 of 2007

BETWEEN: MARIE-AIMEE GINBEY
Plaintiff
AND
MINISTER FOR EDUCATION
Defendant

Catchwords:

Practice - Application to copy documents produced under subpoena

Legislation:

Nil

Result:

Application refused

Representation:

Counsel:

Plaintiff: No appearance
Defendant: No appearance

Solicitors:

Plaintiff: Separovic & Associates
Defendant: Williams Hancock Lawyers

Case(s) referred to in judgment(s):

Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Jagadish v Coles Supermarkets Australia Pty Ltd [2008] WADC 57

DEPUTY REGISTRAR HARMAN: On 30 January 2009 the plaintiff obtained an order for the early return of a subpoena then proposed to be issued to Dr G Shulman of Balajura‑Alexander Heights Surgery. The witness has produced two files each containing photocopied pages of a number of documents. The order provides that with the approval of a Registrar the parties may obtain a copy of a document produced by the witness. The defendant sought copies of a number of documents it flagged with yellow paper. The application was refused and the defendant has sought review by another Registrar for alternative reasons for decision. As there is no provision for such review I will provide reasons.
The issue presented by the application is whether particular documents of a non party, involuntarily produced to the Court should be copied and the copies made available to a party. The order provides unfettered discretion. The onus of persuasion is on the applicant.
The plaintiff's claim in the action is for damages for personal injury. She asserts that as the result of events on 1 March 2001 she sustained injury to her right leg and lower back. She gives particulars of symptoms in her lumbar spine, buttocks, groin and each leg and states that she suffers from headaches; disturbed sleep; blurred vision; nausea and vomiting; stress; anxiety; loss of bladder control, balance, concentration and memory; is restricted in sexual and other activity; and has surgical scarring. She gives particulars of travel expenses and economic loss. Each of those allegations is contested and the defendant pleads that the plaintiff's back injury was either caused or contributed to by pre‑existing torn discs at L3/4 and L5/S1, pre‑existing osteoporosis and degeneration.
The documents sought to be copied are as follows:
1. A page bearing the plaintiff's details but a different family name. Otherwise it is a few lines of handwritten notes preceded by the date stamp 19 February 2009. The author is not identified.
2. A workers' compensation medical certificate that records 21 May 2002 as the date of examination and the date of injury. The injury is described as "bite on right arm". It is undated and unsigned.
3. A workers' compensation medical certificate that relates to the same disability. It records the date of examination as 2 July 2002, is undated and unsigned.
4.Five pages of what I take to be clinical notes:
4.1for the period from 2 July 2002 to 30 January 2003;
4.2for the period 10 October 2001 to 21 May 2002;
4.3for the period 10 May 2000 to 11 June 2001;
4.4for the period 25 June 1998 to 25 January 2000; and
4.5for the period 9 August 1997 to 10 June 1998.
5.Report Dr Daya Durugiael dated 26 August 2002.
6.Report of Dr Stephen Davis dated 15 November 2001.
7.Report of Dr Stephen Davis headed "Result Received" under which appears the date 15 November 2001.
8.Report of Dr Russell Troedson headed "Result Received" under which appears the date 5 July 2002.
In my opinion it is significant that the Court has assumed custody of the documents as the consequence of the exercise of its coercive power. There is no reason to consider that it would approve copies being generated simply because it is their custodian. In my opinion whatever other considerations inform the Court's deliberation, the purpose for which the copy of a particular document is sought, would be regarded as significant.
In support of the application for the early return of the subpoena, the defendant's solicitor deposed in his affidavit of 9 October 2008, as follows:
"11.The Plaintiff has consistently denied a pre‑existing back condition to a number of the medical specialists. Annexed hereto and marked 'MMG 2', 'MMG 3', 'MMG 4', 'MMG 6' and 'MMG 7' are copies of the following reports:
(a)Report from Mr Bannan dated 28 March 2006;
(b)Report of Dr Cheng dated 26 April 2007;
(c)Report of Mr Wayne Thomas dated 18 June 2007;
(d)Report of Mr Greg Finch dated 3 August 2007;
(e)Report of Dr Joel Silbert dated 28 August 2007; and
(f)Report of Mr Hill dated 28 September 2007.
12.Annexed hereto and marked 'MMG 8' is a copy report from Dr Shulman dated 29 August 2007. Dr Shulman's report indicates that in the two years prior to the alleged accident the Plaintiff consulted various practitioners in the practice regarding her pre‑existing back condition.
13.…
14…
15.…
16.The contents of Dr Shulman's report raises a real question as to the nature and extent of the plaintiff's pre‑existing back condition.
17.I seek an order of this Honourable Court that the Defendant do have leave to issue an early return subpoena to Dr Shulman for the production of his medical file including but not limited to his clinical notes, as such notes are clearly relevant to an issue upon dispute upon the pleadings.
18.The notes will enable the Defendant and the Court to determine whether the Plaintiff complained of any back symptoms prior to her alleged accident on 1 March 2001 and if so, will enable the parties and the Court to determine that nature and extent and any alleged pre‑existing back condition.
19.The Defendant also requires copies of Dr Shulman's clinical notes in order to accurately brief their medical experts in relation to the Plaintiff's post‑accident health and fitness and the progression of her symptoms following the accident on 1 March 2001."
I will refer to particular features of the documents of which the defendant seeks copies.
Document 1 contains prejudicial material that may have either significant or only marginal relevance. It is not possible for me to come to any useful conclusion as there is scope to consider that the plaintiff's case is ambiguous. Be that as it may, I would have no doubt that the defendant was previously aware of the subject matter of the material and its value. The document suggests that the "Work Rehab Officer" recorded a different year for the date of the injury the subject of the claim. It records the date of certification of "Dr J" as having been 1 March 2001. It also records "fell a second time in Coolbinia in 2003".
Documents 2 and 3 identify the plaintiff's employer as M.H.E.S. Centre, Matlock Street Mt Hawthorn. I understand that is the facility of the defendant at which the plaintiff had been engaged on the material date for the purposes of her claim. If that was the case and the documents have been utilised for the purpose for which they were prepared, the defendant would have been provided with the signed originals. I do not have the benefit of the defendant's discovery.
The series of pages of handwritten notes that comprise the parts of document 4 appear to be the product of the input of different unidentified persons. In document 4.2 there is an entry for 6 March 2002 which bears the note "W/C relating to soreness at injection site R hip, 3 days off work" and "requires physio". But for two exceptions, otherwise the detail recorded in the parts of document 4 is consistent with what is reported by the witness in his letter to the defendant dated 29 August 2007 to which its solicitor refers in par 12 of his affidavit. The first exception is that the note in document 4.1 recorded for 7 January 2003 appears to be more extensive than is revealed by the letter. In particular, the note includes, "slipped before … LBP … walking on beach". The second is that there is no handwritten note of the consultation of 11 January 1999 recorded in the letter. However, having canvassed the notes, I consider that the date in the letter is probably incorrect. The detail recorded in the letter appears to correspond with the note in document 4.4 of a consultation on 11 February 1999. For what it is worth, the reference to the plaintiff's experience of the previous 5 weeks recorded in that note would be broadly consistent with the note of 10 January 1999.
Otherwise, for the note of 21 May 2002, (to which documents 2 and 3 relate) and that of 3 April 2001, there is no other note of any workers' compensation claim or time off work for any other reason. The note of 3 April 2001 suggests that time off work was attributed to a condition other than the subject of the claim. If I am wrong in that assessment, following the same reasoning that I expressed in relation to documents 2 and 3, I infer that the defendant would have received workers' compensation certificate related to that consultation.
By way of summary, in relation to the parts of document 4, but for the omission of reference to the consultation of 6 March 2002 and the comparatively minor differences in recording that I have noted, the relevant notes are consistent with the content of the letter attached to the defendant's solicitor's affidavit.
Document 6 is a report of Dr Stephen Davis. To the extent that what it conveys relates to the plaintiff, document 7 is identical. The balance suggests that it is the electronic version of document 6 and that it was received on the same date as document 6 was generated.
On the basis of the same reasoning that I have given in relation to document 7, I take it to be the case that document 8 had been received electronically. There is no corresponding "hard copy" but it bears what I take to be similar transmission data as document 7 and reveals the name of the same service provider, Perth Radiological Clinic.
Each of documents 5, 6, 7 and 8 is a document that experience would suggest, may have found its way into the discovery of either one or both of the parties. I do not have the plaintiff's discovery. I do not consider that it is appropriate that I infer that the documents have not been discovered simply on the basis that the defendant has now sought copies. Lack of evidence to one side, at the very least, when it carries the onus, the applicant's failure to inform ought to tell against it. To that I would add that I would be interested in the defendant's justification for seeking copies of both documents 6 and 7. I will conclude by noting that a copy of each of documents 7 and 8 are attached to the defendant's solicitor's affidavit in support of the application for the early return of the subpoena.
On the case put for copying, at par 19 of the defendant's solicitor's affidavit, it had intended to seek copies of documents 4.1, 4.2 and 4.3. I note that the action has been listed for trial in July 2009. I understand that in listing the action the Court would have enquired as to whether there was any outstanding issue that might impact on trial. There is nothing to suggest that the defendant then anticipated that it would be commissioning a further report. Indeed the indications are to the contrary; the defendant has at least three substantial reports from non-treating specialists that run to 10, 13 and 18 pages. I take it to be the case that the briefing referred to in par 19 is of those from whom reports have already been obtained. There is nothing to suggest that the want of clinical notes had presented any reporter with any difficulty. (I note in passing that the report of Dr Silbert records that he has had access to "radiological findings of 15 November 2001", which I take to be a reference to either document 6 or 7.)
In seeking reconsideration of the decision to refuse copying, the defendant's solicitor wrote on 27 February 2009, in part as follows:
"You will also note that whilst there are a number of pages of clinical notes, we have only sought copies of a proportion of those clinical notes always remaining conscious of the plaintiff's right to privacy. In our submission in light of the considerations outlined above our request does not constitute a fishing expedition and we attempted to be reasonable in our request for certain documents."
The term "considerations outlined above" draws in the content of the defendant's solicitor's affidavit that I have recited.
I do not understand the significance of the reference to a fishing expedition. The defendant is entitled to review the documents produced regardless whether they are relevant. I also struggle with the proposition that any sensible constraint on copying would be founded upon reasonableness. Contrary to what is expressed in the letter, my concern had not been that the applicant was engaging in a fishing expedition or that the request was unreasonable. I do not consider that in the letter of 27 February 2009 the defendant advances any case for the provision of particular copies. It appears to assert a qualified right. Unlike the situation where copying is undertaken consequent upon discovery, the applicant has no right.
Whether on either a broad view of the applicant's request for copies or on an assessment of each particular document I would make the observation that in the event that the application was refused, if the defendant considered that it remained for it to make comprehensive notes, to do so would not be an onerous task.
In summary the documents are relevant. On any assessment of the case presented to the Court, it is unclear why it would be appropriate to provide the defendant with copies of documents 1, 2, 3, 6 and 7. Before I consider that it would be appropriate for the Court to provide the defendant with copies of documents 5 and 8, I consider that the defendant ought to at least indicate that they are not already available to it. As to the documents that I have grouped as 4, to the extent that they do not reflect the content of the letter of the witness dated 29 August 2007, it is a relatively minor matter and if the application were refused it would involve some minor note taking.
I might infer that there would be some utility in the applicant having copies. Ultimately such utility may be reduced to nothing more than a matter of convenience or efficiency in the process of note taking.
In Jagadish v Coles Supermarkets Australia Pty Ltd [2008] WADC 57, in the context of considering an application for the early return of a subpoena, I gave reasons for considering that I was not bound by what was expressed in reasons for decision in Commonwealth of Australia v Albany Port Authority [2006] WASCA 185. In that case the court had promoted the proposition that it was sufficient for the applicant to portray, alternatively for the court to recognise that an applicant had a legitimate forensic purpose in having access to documents. The court drew upon other determinations to the same effect. I have some considerable misgivings with the proposition that to the end of considering whether an applicant had discharged the onus, the court would either accept or propose a meaningless test. Be that as it may, in a case such as that now before me the defendant has had and continues to have the opportunity to inspect the documents produced, to identify those relevant to the issues in the action and to make notes as to their content both for the purposes of the application and getting up the case for trial. It had the opportunity to express a more precise case in support of the application.
I would conclude by adding that the applicant is not assisted in its task of discharging the onus by the fact that in the event that copying was approved the court would impose limits on use of the copied documents.
In my opinion the onus on the defendant has not been discharged.