Ginnity v Prefsure Life Limited (No 2)

[2007] VSC 293

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:	15 August 2007
DATE OF RULING:	17 August 2007
CASE MAY BE CITED AS:	Ginnity v Prefsure Life Limited (No 2)
MEDIUM NEUTRAL CITATION:	[2007] VSC 293

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Evidence – Documents – Subpoena – Production of plaintiff’s medical records pursuant to subpoena – Ruling on relevance of documents

Costs – Successful appeal from orders of a Master – Application for indemnity certificate - Certificate granted – Appeal Costs Act 1998 s4(1)(a)

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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:

My earlier decision

1. On 15 August 2007, I published my reasons for decision in relation to an appeal brought by the defendant against an order of a Master: Ginnity v Prefsure Life Limited [2007] VSC 284. The appeal related to documents produced to the court in response to a subpoena served on Dr Karen Strungs, one of the plaintiff’s treating psychiatrists. The plaintiff objected to the subpoenaed documents being inspected by the defendant, on grounds of relevance and medical privilege.

1. In relation to the relevance objection, in paragraph 7 of my earlier reasons, I noted as follows:

7.        During the course of the hearing of the appeal, the defendant’s counsel indicated that the defendant does not press for the production of any subpoenaed documents:

(a)       Which were created prior to 1984; or

(b)       In so far as they refer to a medical condition which is unrelated to the issues in dispute in this proceeding.

1. That concession disposed of the plaintiff’s objections as to the width of the subpoena, leaving the question of medical privilege as the only live issue on the appeal. The parties having agreed that the principles governing implied waiver of legal professional privilege also applied to the waiver of medical privilege, I held that the plaintiff had impliedly waived medical privilege under s28(2) of the Evidence Act 1958 in respect of the subpoenaed documents.

Relevance ruling

1. At the time of publishing my earlier reasons for decision, the question arose as to how a decision was to be made as to which, if any, of the subpoenaed documents fell within paragraph 7.  The parties agreed that I should examine the documents myself, out of court, to determine that issue.  The plaintiff’s counsel did not seek to make any submissions about the contents of particular documents.  I have now inspected the subpoenaed documents. 

1. None of the subpoenaed documents were created prior to 1984, so there are no documents falling within paragraph 7(a).

1. The next question is whether there are documents falling within paragraph 7(b).  The medical conditions relied upon by the plaintiff in this proceeding are: depressive disorder; chronic fatigue syndrome with exhaustion; fructose malabsorption; bowel difficulties; an underactive thyroid; difficulties with concentration, memory and insomnia; anxiety.   Most of the subpoenaed documents clearly relate to one or more of those conditions. 

1. However, there are 16 pages of pathology results, not all of which are so clear cut.   Eight of those pages relate to pathology tests requested by Dr Strungs herself, as part of her treatment of the plaintiff’s depression; they are therefore relevant to the issues in this proceeding.  The remaining eight pages show the results of pathology tests requested by Dr D Popescu, the doctor who referred the plaintiff to Dr Strungs.  The relevance of some of those (for example, thyroid function tests) is obvious, the relevance of others would be less so if looked at in isolation.  But, when one considers that these pathology tests were apparently provided by Dr Popescu to Dr Strungs as part of the referral process, to enable her to treat the plaintiff’s depression it cannot be said that they are not relevant to one of the pleaded medical conditions.

1. It follows that there are no documents (or parts of documents) which should be excluded from inspection on grounds of irrelevance.

Costs

1. The plaintiff agrees that she ought to pay:

(a)       The costs of this appeal; and

(b)      The costs of the hearing before the Master on 18 July 2007 and the affidavits relied upon by the defendant on that occasion.

1. As far as the costs of the hearing before the Master on 14 June 2007 are concerned,  I have concluded that there should be no order as to those costs, for the same reason that the Master gave.

1. The plaintiff now seeks an indemnity certificate under s4 of the Appeal Costs Act1998. I was referred to the decision of Hedigan J in Parkesinclair Chemicals (Aust) Pty Ltd v Asia Associates Inc,[1] in which his Honour held that an appeal from a Master to a Judge is “an appeal” within the meaning of s4(a)(a), and granted an indemnity certificate in respect of the respondent’s costs of the appeal and the costs ordered to be paid by it to the appellants. That decision was followed by McDonald J in Harris v Bennett and O’Brien (No 2).[2]

   [1][2000] VSC 336.

   [2][2002] VSC 163.

1. I grant an indemnity certificate pursuant to s4(1)(a) to the plaintiff in respect of her own costs of the appeal and the costs ordered to be paid by her to the defendant in respect of the appeal.

1. I do not propose to order that the certificate include the costs of the hearing before the Master.  The language of the section makes it clear that the parliamentary intention is that prima facie such costs should not be ordered, although the appellate court has a discretion to do so.  There is nothing about the facts of this case which would justify a departure from the usual rule.

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