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

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.

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.

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

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.

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

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…

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 293
Decision Date: 17 August 2007

CaseChat Overview and Summary

In the case of Ginnity v Prefsure Life Limited, the plaintiff, Ginnity, sought production of medical records pursuant to a subpoena issued in relation to an insurance dispute. The defendant, Prefsure Life Limited, contested the subpoena on the basis that the documents were irrelevant to the proceedings. The matter was heard in the Supreme Court of Queensland. The court was tasked with determining whether the documents in question were relevant to the issues being contested and whether the subpoena should be enforced.

The legal issues before the court involved the scope of a subpoena in civil proceedings and the relevance of the medical records to the insurance dispute. The court had to assess whether the documents were necessary for the fair determination of the case. The defendant argued that the documents were irrelevant and that their production would be an unwarranted invasion of privacy. The plaintiff, on the other hand, contended that the documents were essential to proving the extent of the injuries claimed.

The court ruled that the documents were relevant and should be produced as they were necessary for the fair determination of the case. The judge found that the subpoena was not an unwarranted invasion of privacy and that the documents were pertinent to the issues at hand. The court also addressed the issue of costs, granting an indemnity certificate under the Appeal Costs Act 1998. This decision was made in light of the successful appeal from the orders of a Master, leading to the conclusion that the defendant's application for indemnity certificate was justified. The court's decision was grounded in the principle that the production of relevant documents is essential for the proper administration of justice.

Orders