Ginnity v Prefsure Life Limited - [2007] VSC 284

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

No. 5269 of 2006

SHEILA MARY GINNITY	Plaintiff
v
PREFSURE LIFE LIMITED	Defendant

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2007
DATE OF RULING:	15 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSC 284

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Evidence – Documents – Subpoena – Production of plaintiff’s medical records pursuant to subpoena – Medical privilege – Whether defendant entitled to inspect medical records – Whether implied waiver of privilege – Evidence Act 1958 s28(2)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Pillay	Maurice Blackburn Cashman
For the Defendant	Mr D J Christie	Monahan + Rowell

HER HONOUR:

The plaintiff claims that since late June 2000, she has been either partially or totally disabled from working as a dentist. The defendant has refused to pay to the plaintiff the income protection benefits to which she claims to be entitled under her insurance policy with the defendant. Relevantly, for present purposes, the plaintiff alleges that since June 2000, she has been suffering from a depressive disorder for which she was under the care of a medical practitioner.

The defendant denies that the plaintiff is disabled, as alleged by her. Further, the defendant says that it is entitled to avoid the insurance policy by reason of the following matters:

(a) Prior to the inception of the insurance policy on 15 July 1998, the plaintiff represented that, apart from depression whilst suffering from glandular fever in 1984, she had never had any mental illness, depression, anxiety state or nervous condition; and

(b) In fact, at some time after 1984, but prior to the policy inception date, the plaintiff suffered from a number of psychological conditions, including significant anxiety and stress, which should have been, but were not, disclosed to the defendant.

Documents filed with her insurance claim form relevantly disclosed that the plaintiff was treated by Dr Karen Strungs, a psychiatrist, from March 2001, until Dr Strungs moved to Sydney in July 2001.

On 26 April 2007, the defendant issued a subpoena seeking the production by Dr Strungs of the following documents: “All patient notes, clinical notes, specialists’ reports, medical reports, referrals, and all other documents relating to [the plaintiff].” Dr Strungs complied with the subpoena by producing her file to the Prothonotary.

On 28 May 2007, the plaintiff’s solicitors gave notice that the plaintiff objected to the defendant inspecting the subpoenaed documents, on the basis that the subpoena had been drafted too broadly and the subpoenaed documents were not limited by time or content. By a further letter dated 16 July 2007, the plaintiff’s solicitors relied as an additional ground of objection on s28(2) of the Evidence Act 1958 (“the Act”).

The Prothonotary referred the objections to a master for determination. On 18 July 2007, a master upheld the plaintiff’s objections to inspection by the defendant. The defendant now appeals against the master’s order.

During the course of the hearing of the appeal, the defendant’s…

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.

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Details

Case: [2007] VSC 284
Decision Date: 15 August 2007

CaseChat Overview and Summary

The case of Ginnity v Prefsure Life Limited was heard in the County Court of Victoria. The plaintiff, Ginnity, sought to prevent the defendant, Prefsure Life Limited, from inspecting his medical records that were subpoenaed as part of the litigation. The defendant argued that the inspection was necessary to properly defend the claim, while the plaintiff claimed that medical privilege precluded the inspection. The court was required to determine whether the defendant was entitled to inspect the medical records and if there had been an implied waiver of medical privilege.

The court considered the provisions of the Evidence Act 1958, specifically section 28(2), which addresses the disclosure of privileged documents in the course of legal proceedings. The plaintiff argued that medical privilege protected the records and that no waiver of privilege had occurred. The defendant contended that the inspection was necessary to defend the claim and that the plaintiff had implicitly waived privilege by placing his health in issue. The court found that medical privilege applied to the records and that there was no evidence of an implied waiver. The court held that the defendant was not entitled to inspect the medical records.

The County Court of Victoria ruled in favour of the plaintiff, Ginnity, finding that the defendant was not entitled to inspect the subpoenaed medical records. The court determined that the medical records were protected by medical privilege and that there had been no implied waiver of this privilege. The court further held that the defendant's need to inspect the records to defend the claim did not override the plaintiff's right to medical privilege. As a result, the court quashed the subpoena directing the inspection of the medical records. The defendant was ordered to pay the plaintiff's costs associated with the application.

Orders