Goh v Murdoch Eye Pty Ltd
[2014] WASC 344
•25 SEPTEMBER 2014
GOH -v- MURDOCH EYE PTY LTD [2014] WASC 344
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 344 | |
| Case No: | CIV:2266/2014 | 18 SEPTEMBER 2014 | |
| Coram: | CHANEY J | 25/09/14 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's application for interlocutory injunction dismissed | ||
| B | |||
| PDF Version |
| Parties: | KAI OON GOH MURDOCH EYE PTY LTD |
Catchwords: | Injunction Interlocutory Mandatory Medical practitioners Medical records Property in patient files Whether files should be delivered to plaintiff |
Legislation: | Nil |
Case References: | Australian Broadcasting Commission v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 Breen v Williams [1996] HCA 57; (1996) 186 CLR 71 Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148 Health Service for Men Pty Ltd v D'Souza [2000] NSWCA 56; (2000) 48 NSWLR 448 Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak [2006] NSWSC 844; (2006) 67 NSWLR 569 Redland Bricks Ltd v Morris [1970] AC 652 Shepherd Homes Ltd v Sandham [1971] Ch 340 State of Queensland v Australian Telecommunications Commission [1985] HCA 25; (1985) 59 ALR 243 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MURDOCH EYE PTY LTD
Defendant
Catchwords:
Injunction - Interlocutory - Mandatory - Medical practitioners - Medical records - Property in patient files - Whether files should be delivered to plaintiff
Legislation:
Nil
Result:
Plaintiff's application for interlocutory injunction dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Bennett
Defendant : Mr S M Davies SC & Mr D M Fairweather
Solicitors:
Plaintiff : Bennett & Co
Defendant : Allion Legal
Cases referred to in judgment:
Australian Broadcasting Commission v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618
Breen v Williams [1996] HCA 57; (1996) 186 CLR 71
Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148
Health Service for Men Pty Ltd v D'Souza [2000] NSWCA 56; (2000) 48 NSWLR 448
Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak [2006] NSWSC 844; (2006) 67 NSWLR 569
Redland Bricks Ltd v Morris [1970] AC 652
Shepherd Homes Ltd v Sandham [1971] Ch 340
State of Queensland v Australian Telecommunications Commission [1985] HCA 25; (1985) 59 ALR 243
1 CHANEY J: The plaintiff is an ophthalmologist. From 2002 until 7 July 2014, he carried on practice in a business known as Murdoch Eye Centre (MEC), which is owned and operated by the defendant as the trustee of the Murdoch Eye Unit Trust. MEC holds a lease in relation to rooms which it occupies in the Murdoch Medical Centre and also leases premises in Armadale.
2 On 7 July 2014, the plaintiff ceased practising with MEC, and commenced his own practice operating from premises in the same complex as MEC. The precise circumstances of the plaintiff's departure are the subject of conflicting evidence.
3 Since the plaintiff's departure from MEC, issues have arisen in relation to the plaintiff's access to the files of patients whom he had treated whilst with MEC. The relationship between the parties appears to have become progressively worse over that time. The plaintiff now seeks an order that the defendant deliver up to him, within five business days, the complete files of patients treated and seen by him within the last two years, and electronic records relating to those patients. He also seeks an order that, within 30 days, the defendant deliver up to him complete files of all patients treated and seen by him which are held by the defendant, and electronic records relating to those patients. The plaintiff estimates that there are some 30,000 to 40,000 such files going back to the time when the plaintiff commenced working with MEC in 2002.
The plaintiff's cause of action
4 The plaintiff issued the writ of summons originating these proceedings on 9 September 2014. The writ is generally indorsed. It refers to an 'Administration Agreement' whereby MEC provided management services to the defendant including 'the maintenance and holding of patient files, patient notes and patient electronic data all the property of the plaintiff'. Reference is made to the termination of the Administration Agreement on 7 July 2014, and a refusal of the defendant 'to deliver up to the plaintiff physical records comprising patient files and documents and electronic records comprising patient files, patient notes, all the property of the plaintiff'. Thus, whilst no statement of claim has yet been filed, the plaintiff's claim to an entitlement to the files is based on the proposition that property in the files belongs to the plaintiff. The relief sought is a mandatory injunction requiring delivery to the plaintiff of the patient records. There is also a claim to damages for failure to deliver up records to date.
The claim for interlocutory relief
5 The summons for interlocutory relief was filed with the writ and, at the plaintiff's request, was listed for an urgent hearing. Shortly before the hearing, the plaintiff refined the orders which it seeks on an interlocutory basis to those outlined in [3] above.
6 The plaintiff argues that his case for an entitlement to possession, as the owner of the files, is well-settled having regard to the decision of the High Court in Breen v Williams.1 He contends that difficulties which he has had obtaining patient records since his departure from MEC have caused the cancellation of three operations, and have potentially jeopardised, and may in the future jeopardise, the treatment of the plaintiff's patients. He asserts that the absence of records puts both the patients and himself at risk.
The defendant's position
7 The defendant contends that the property in the records lies with MEC, and not the plaintiff. In that regards, it refers to Health Service for Men Pty Ltd v D'Souza2 and Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak,3 two cases in which it was found that property in medical records lay with the medical practice, rather than with the individual doctor treating the patient to whom the records related. The defendant contends, therefore, that the plaintiff's claim for interlocutory relief, based on the claim to ownership of the records, is very weak.
8 In addition, the defendant contends that there is no need for any interlocutory relief because copies of records requested by the plaintiff or his patients have been provided since the plaintiff left MEC, and will continue to be provided on request and upon payment of a fee. It also submits that there is no reason disclosed why the plaintiff requires 30,000 to 40,000 patient records, the large proportion of which are not current patients. It submits that the defendant itself has a strong interest in maintaining the records of its own practice, and that the relief sought on an interlocutory basis would in effect give the plaintiff substantially the relief sought in the action. It also submits that the terms of the injunction sought are wide and uncertain in their operation and breadth and would require a vast amount of work for no apparent purpose.
Legal principles
9 The principles applicable to the grounds for interlocutory injunctions are well-settled. As explained by Mason ACJ in Castlemaine Tooheys Ltd v The State of South Australia,4 they are that the plaintiff must show:
i. that there is a serious question to be tried;
ii. that the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation unless the injunction is granted; and
iii. that the balance of convenience favours the granting of the injunction.
10 The expression 'serious question' should be understood as conveying the notion that the seriousness of the question depends upon considerations of the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the order he seeks.5
11 The injunction sought in this case is a mandatory injunction. Mandatory injunctions will not normally be granted on an interlocutory application, although they may be in special circumstances.6 In State of Queensland v Australian Telecommunications Commission,7 Gibbs CJ said:
However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can easily be remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.
12 Gibbs CJ also cited with approval the principle stated by Megarry J in Shepherd Homes Ltd v Sandham,8 in which it was said that, in order to grant a mandatory injunction, the Court must feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted, that being a higher standard than is required for a prohibitory injunction.
Serious question to be tried
13 The central issue between the parties as to entitlement to the patient files is the question of who has property in the files.
14 As already mentioned, the plaintiff relies on Breen v Williams. In that case, Brennan CJ said, at page 80, that:
Documents prepared by a professional person to assist the professional to perform his or her professional duties are not the property of the lay client; they remain the property of the professional.
15 Remarks to the same effect were made by Dawson and Toohey JJ at page 88, and Gaudron and McHugh JJ at page 101.
16 The defendant, on the other hand, points to the observation of Mason P in Health Services for Men Pty Ltd v D'Souza at page 450 where his Honour said:
The passages in Breen v Williams (1996) 186 CLR 71 recognising that a professional person may have property in certain documents prepared in the performance of professional duties address the position as between the professional and the lay patient or client. They have nothing to say about ownership as between groups of professionals (for example, partners inter se or an employer and employee) or as between a corporation employing or engaging the services of professionals.
17 In the same case, Sheller JA examined the nature of the relationship between the appellant, which owned and operated clinics at which the respondent medical practitioners saw patients. He concluded that the facts and circumstances pointed 'unerringly to the conclusion that the doctors were under contract to the appellants to assist the appellants to provide the diagnostic and treatment service that the appellants offered by advertisement to men suffering from particular conditions'9 and, therefore, the respondent document doctors did not acquire any property in the patient files. Priestley JA agreed with Sheller JA,10 as did Mason P.11
18 A similar conclusion was reached by Campbell J in Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak. In concluding that the property in patient files remained with the medical practice, rather than the individual doctor, Campbell J gave detailed consideration to the nature of the arrangements between the practice and the individual doctor, and to the particular documents which went to make up the patient files.
19 The defendant submits that the factual circumstances in the present case align closely to those in Health Services for Men Pty Ltd v D'Souza, and on that basis the plaintiff's claim to property in the files is without merit.
20 The nature of the relationship between the plaintiff and MEC was the subject of affidavits of the plaintiff and of Dr Phillip McGeorge, the sole director, secretary and shareholder of the defendant. It is clear that the parties approach the nature of the relationship in quite different ways. The plaintiff asserts that, in effect, the defendant is a mere service company which provided services to his practice on payment of a fee of 40% of his billings. The defendant's approach is that the plaintiff worked in the practice of MEC, being a group of eye specialists, on the basis that he was entitled to retain 60% of his billings.
21 Although the writ makes reference to an 'Administration Agreement', there was no written agreement as to the basis upon which the plaintiff carried on practice at MEC.
22 In Dr Goh's affidavit, he asserts that he was never an employee of MEC; he received no wage or salary; he was never held out as a director or principal of MEC; he was never given the title 'associate'; and he never held any shares in the defendant. He says that he had sole responsibility for determining his own working hours, his annual leave and his attendances at conferences for which he paid himself. He arranged and paid for memberships of professional organisations and billed at all times utilising his own provider number.
23 In Dr McGeorge's affidavit, he deposes that when Dr Goh commenced working at MEC in 2002, he said words to the effect that 'in consideration for working as an associate in the practice of MEC, Dr Goh could retain 60% of the fees which he generated from working', whether he was working in the private rooms of MEC or at other locations.
24 Neither Dr Goh's evidence nor Dr McGeorge's evidence necessarily, of itself, finally determines the question of property in the files. The question necessarily requires a thorough examination of the contractual arrangement between the plaintiff and the defendant. As the authorities relied upon by each side demonstrate, the central issue in the case, as it is currently presented, is wholly dependent on that analysis. It is not an analysis which can be confidently undertaken on the basis of affidavits filed on an urgent basis untested by cross-examination, and which demonstrate fundamentally different views held by the parties as to the proper characterisation of their contractual relationship. The central issue is one which should be left to trial for determination.
25 It is sufficient to say for present purposes that I do not accept that, as the plaintiff contends, it has an almost unanswerable claim to property in the patient files. I accept, however, that its claim is arguable. This is not, however, a case in which the plaintiff's claim is clear and one which ought to be decided at once, so as to comprise a special circumstance of the kind referred to in State of Queensland v Australian Telecommunications Commission.12
Irreparable damage and balance of convenience
26 The plaintiff claims that compliance with the injunction would require little effort by the defendant. He says the defendant would simply identify the files relating to the plaintiff's patients from its electronic records, gather them up and deliver them to the plaintiff. He offers an undertaking to preserve the files in their existing condition, so that they could be returned if ultimately his claim were to be unsuccessful. Perhaps more importantly, the plaintiff relies on the proposition that patients' health and wealth-being are or may be at risk if the plaintiff has incomplete or no files in relation to their earlier treatment.
27 The defendant submits that the plaintiff's evidence as to potential risks to patients is conclusory and without any evidentiary foundation. It argues that copies of records requested for current patients have been provided (albeit at a fee, although it is not entirely clear on the evidence the extent to which the fees have been paid), and that it remains willing to continue to provide patient records necessary for ongoing treatment of patients. Dr McGeorge deposes to the fact that there are ways to deal with any risks that an absence of notes may present, if it is necessary to do so. To the extent that it might ultimately be found that the fee charged by the defendant for copying the files was unjustified, any loss to the plaintiff could be dealt with by way of a claim for damages.
28 In my view, the plaintiff has not established that the arrangements which were in place throughout July and August 2014 were not adequate to substantially reduce, if not completely avoid, any risks to patient welfare. An affidavit of the defendant's practice manager, sworn shortly before the interlocutory application was heard, indicated that the defendant remains prepared to continue to provide copies of files on request by the plaintiff within practical limitations.
29 In my view, the arrangements for copying of files as and when needed is an adequate interim arrangement pending the resolution of the substantive action, which should be programmed to an early mediation, and if that is unsuccessful, an early hearing. The alternative would, in my view, involve a significant imposition on the defendant to locate and review many thousands of files. It is said by Dr McGeorge that the files contain a range of documents, some of which are prepared by people other than Dr Goh who are employed by, or work in, MEC. The plaintiff's case is put on the assumption that he has property to all documents in the files of any patient whom he has seen over a 12-year period. That is a proposition which, at least in the context of an interlocutory dispute, I do not accept. It follows that the imposition on the defendant would be particularly significant, and the effect of granting the interlocutory injunction would be effectively to grant the substantive relief sought in the writ.
Copyright
30 The plaintiff raised the question of a potential breach of his copyright in the patient files by the copying of those files by the defendant. No claim for breach of copyright is contained in the indorsement of claim in the writ, but as I understand the plaintiff's proposition in the interlocutory hearing, it is that the potential breach of copyright is relevant to the plaintiff's argument that maintenance of the ongoing arrangements in relation to the provision of the copies of files should not be permitted.
31 Given that files are being copied at the request of the plaintiff, or at the request of patients (apparently at the plaintiff's suggestion), the assertion that there has been a breach of copyright seems surprising. Whatever questions of copyright might play out when the case is fully pleaded, I do not consider that considerations as to copyright provide a basis upon which I should take a different view as to the balance of convenience.
Conclusion
32 For those reasons, I am of the view that the application for an interlocutory injunction should be dismissed.
1Breen v Williams [1996] HCA 57; (1996) 186 CLR 71, 80 (Brennan CJ), 88 (Dawson & Toohey JJ), 101 (Gaudron & McHugh JJ) and 126 - 127 (Gummow J).
2Health Service for Men Pty Ltd v D'Souza [2000] NSWCA 56; (2000) 48 NSWLR 448.
3Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak [2006] NSWSC 844; (2006) 67 NSWLR 569.
4Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148, 153.
5Australian Broadcasting Commission v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 82 - 83 (Gummow & Hayne JJ); Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, 622 - 623 (the Court).
6State of Queensland v Australian Telecommunications Commission [1985] HCA 25; (1985) 59 ALR 243, 245 (Gibbs CJ), citing Redland Bricks Ltd v Morris [1970] AC 652.
7State of Queensland v Australian Telecommunications Commission [1985] HCA 25; (1985) 59 ALR 243, 245, citing Halsbury's Laws of England vol 24 [948].
8Shepherd Homes Ltd v Sandham [1971] Ch 340, 351.
9Health Service for Men Pty Ltd v D'Souza [2000] NSWCA 56; (2000) 48 NSWLR 448, 460.
10Health Service for Men Pty Ltd v D'Souza [2000] NSWCA 56; (2000) 48 NSWLR 448, 450.
11Health Service for Men Pty Ltd v D'Souza [2000] NSWCA 56; (2000) 48 NSWLR 448, 449.
12State of Queensland v Australian Telecommunications Commission [1985] HCA 25; (1985) 59 ALR 243, 245 (Gibbs J).
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