Goh v Murdoch Eye Pty Ltd [No 2]
[2015] WASC 290
•14 AUGUST 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GOH -v- MURDOCH EYE PTY LTD [No 2] [2015] WASC 290
CORAM: CHANEY J
HEARD: 24 JUNE 2015
DELIVERED : 14 AUGUST 2015
FILE NO/S: CIV 2266 of 2014
BETWEEN: KAI OON GOH
Plaintiff
AND
MURDOCH EYE PTY LTD
Defendant
Catchwords:
Injunctions - Interlocutory injunction previously refused - Further orders sought - Whether changed circumstances - Turns on own facts
Legislation:
Nil
Result:
Application for further orders refused
Category: B
Representation:
Counsel:
Plaintiff: Mr M L Bennett
Defendant: Mr S M Davies SC & Mr T J Palmer
Solicitors:
Plaintiff: Bennett & Co
Defendant: Cardinal Litigation + Dispute Resolution
Case(s) referred to in judgment(s):
Clairs Keely (a firm) v Treacy [2004] WASCA 277; (2004) 29 WAR 479
Goh v Murdoch Eye Pty Ltd [2014] WASC 344
Mercanti v Mercanti [2014] WASC 64
Todd v Novotny [2000] WASC 308
Wentworth v Rogers (Unreported, NSWSC, 28 April 1995)
CHANEY J: On 18 September 2014, I heard an urgent application by the plaintiff, Dr Goh, who is a medical practitioner, for an interlocutory injunction seeking an order for delivery up to him of patient files and records for all patients treated and seen by him whilst he worked at a practice known as Murdoch Eye Centre which is owned and operated by the defendant. The principal director of the defendant is Dr Phillip McGeorge. On 25 September 2014, I delivered reasons for declining to grant the injunction sought: see Goh v Murdoch Eye Pty Ltd [2014] WASC 344 (September 2014 reasons).
In the context of consideration of the question of balance of convenience, I said in the September 2014 reasons:
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.
On 27 May 2015, Dr Goh filed a minute of proposed orders (May minute) seeking orders that the defendant provide him or his solicitors with complete electronic copies of the patient files of 162 named patients. That application was listed to be heard on 24 June 2015. On 19 June 2015, Dr Goh filed a further minute of proposed orders (June minute) in substitution for those sought in May. The June minute sought the production of complete electronic copies of the patient files of 67 named patients. The reason the list of patients was shorter than that attached to the May minute was that, in the meantime, the files of a significant number of the patients listed in the May minute had been provided.
In addition to the order for production of the specified patient files, Dr Goh sought an order that if the defendant asserts that it cannot produce any record in the list, it should by a specified date notify Dr Goh in writing of the asserted reason that it cannot produce the record. He sought a further order to deal with future requests, namely that:
The defendant must answer any patient request for the provision of records to the plaintiff within 40 days of the defendant's receipt of the request by either:
a.producing to the plaintiff a complete electronic copy of the records; or
b.if the defendant asserts that it cannot produce the record, notifying the plaintiff in writing of the asserted reason it cannot produce the record.
In his written submissions, Dr Goh contended that the orders sought are necessary and appropriate to define the terms of the interim arrangement referred to in the September reasons so that Dr Goh can safely and professionally continue to treat patients. It is said that the defendant's delays in the provision of documents have caused significant prejudice to Dr Goh and his patients.
The application is opposed by the defendant.
Progress of the action to date
Dr Goh ceased practising with Murdoch Eye Centre on 7 July 2014. It is apparent that the relationship between Dr Goh and Dr McGeorge had substantially broken down by that time. Dr Goh commenced his own separate practice on 21 July 2014. Issues arose in relation to the provision of patient records which culminated in the urgent application being made on 9 September 2014. An application was heard on 18 September and a decision given on 25 September 2014. As can be seen from the passage in the September 2014 reasons set out above, I considered that the interim arrangement to provide copies of files should endure pending what I anticipated to be an early resolution of the action, either through mediation or an early hearing.
The statement of claim was filed on 30 September 2014, and on 9 October I made orders for further pleadings and for the parties to attend mediation. The defence was filed on 31 October 2014, and the reply on 12 November 2014. Nothing further occurred on the court file until the filing by the plaintiff of affidavits in support of orders contained in the May minute. The May minute also sought an order vacating my earlier orders for mediation. No explanation is contained in any of the affidavits as to why mediation has not been undertaken, but counsel for Dr Goh indicated in the course of submissions that other issues had arisen between these parties in the interim, and that they are unable to reach agreement as to whether all issues should be dealt with in a mediation. Given the discreet issues in these proceedings, that explanation is unsatisfactory.
It is regrettable that Dr Goh has done nothing to prosecute the substantive action in the period of six months between November 2014 and May 2015. Given that he initially sought interim relief on an urgent basis, and now again seeks what is, in effect, an interlocutory mandatory injunction, the plaintiff should have pursued his substantive claim with expedition. His delay in doing so is a factor to be considered in the exercise of the discretion to grant an interlocutory injunction.
The foundation for the plaintiff's application
Dr Goh notes my observation in the September 2014 reasons that the arrangement for copying of files when needed was an adequate interim arrangement. He notes that that conclusion was reached in the context of the defendant's submissions at the hearing of interlocutory injunction application to the effect that additional records had been and would be provided on request so long as the requests were made in a timely way. Dr Goh also refers to the defendant's counsel's oral submissions at the interlocutory injunction hearing to the effect that since Dr Goh left Murdoch Eye Centre, requests for copies had been made and met and that everything that had been asked for had either been provided or would be available within a short period of time.
Dr Goh filed two affidavits in support of his application for further orders. One was an affidavit sworn by Dr Goh himself. He deposed to the fact that he consults with around 80 clinical patients 'per full clinic day' and 40 patients on those days where he also conducts surgical sessions. He deposes to the fact that he has continued to treat some patients without their past clinical notes and records and asserts that that compromises his ability to provide the best care and treatment.
The second affidavit relied upon is an affidavit of Yu Ming Goh sworn on 27 May 2015. Ms Goh is Dr Goh's sister and his secretary at his current practice. She explained the process which she follows in requesting the transfer of patient records from Murdoch Eye Centre. She keeps a spreadsheet of patient requests which records the patient's name, the date of his or her request for records from Murdoch Eye Centre and the date records were provided. She regularly sends bundles of requests to Murdoch Eye Centre. Attached to her affidavit was a copy of that spreadsheet which recorded the names of 2,395 patients whose files had been requested, and the date on which those files had been received. She also attached a list of patients whose requests for files had not yet been met. That list contained 195 names. Ms Goh also said that she had sent around 200 additional patient requests to Murdoch Eye Centre since 17 April 2015 but she did not count them as 'outstanding' yet.
As I have mentioned, between Ms Goh attesting to her affidavit on 27 May 2015, and the filing of the June minute, the number of outstanding requests had been reduced to 67. In a responsive affidavit sworn on 16 June 2015, Ms Goh said that the then outstanding 67 patient requests included those unmet requests that had been made between 17 April 2015 and 4 May 2015, because they had now been outstanding more than 40 days prior to her affidavit. There were seven patient requests listed as having been made on or after 17 April. Given Ms Goh's earlier evidence that some 200 applications had been made between 17 April and 27 May 2015, it might be expected that around half, or approximately 100, of those were requested between 17 April and 4 May. Of those, only seven remained outstanding as at 16 June 2015.
The defendant's evidence
The defendant filed an affidavit of Katherine Margaret McGeorge sworn 12 June 2015. Ms McGeorge is the wife of Dr McGeorge and the practice manager of Murdoch Eye Centre. She deposed to the fact that, at that date, Murdoch Eye Centre had located, copied and delivered to Dr Goh's practice in excess of 2,700 patient files. She explained the process which is undertaken by staff at Murdoch Eye Centre to process requests from Dr Goh's practice for patient files. She explained that Murdoch Eye Centre utilises the services of a professional external copying provider, Lexdata, and that since 12 August 2014, Lexdata had provided 59 discs containing scanned copies of complete patient files. Those discs have then been provided to Dr Goh's practice. She said that files that are requested on an urgent basis are located, scanned and emailed to Ms Goh without being sent out to Lexdata for copying.
Ms McGeorge said that the way that Dr Goh's practice had communicated requests for patient files had made it difficult and time consuming for Murdoch Eye Centre to action the requests. She said that Murdoch Eye Centre had paid all copying costs to date, except for approximately three files which were paid for by patients before Lexdata was engaged. She said that Murdoch Eye Centre did not pass on those costs to patients or to Dr Goh, but bore the costs itself.
Ms McGeorge attached to her affidavit a marked up copy of Dr Goh's list of patients that was attached to the May minute. She analysed the status of those files. She said that 119 requests related to files that had already been provided to Dr Goh's practice. Thirteen related to individuals who, on the basis of Ms McGeorge's searches, did not present for their appointment at Murdoch Eye Centre and accordingly no file existed in relation to them. Sixteen requests relate to patients who, on the basis of Ms McGeorge's searches, never had an appointment with Dr Goh and saw one of the other ophthalmologists at Murdoch Eye Centre. I note in passing that files of that nature are not the subject of the principal relief sought in these proceedings, which is a claim for delivery of the original files of patients treated by Dr Goh when he was at Murdoch Eye Centre. There is no basis for granting interim relief in relation to files which do not form part of the subject matter of the primary action. The last category of Ms George's analysis was that 14 requests related to files that had not been found subsequent to Dr Goh's departure from Murdoch Eye Centre.
The defendant's contentions
The defendant contends that Dr Goh's characterisation of the application as one seeking to impose terms in respect of an interim arrangement is a mischaracterisation. Rather, the defendant contends that the application is in effect a fresh application for a mandatory injunction seeking to re‑litigate its failed application for interlocutory relief. It contends that such an application should only be entertained where there is a material change in circumstances or where evidence has become available which was not available at an earlier time. In making that submission the defendant relies on Mercanti v Mercanti [2014] WASC 64 [22]; Clairs Keely (a firm) v Treacy [2004] WASCA 277; (2004) 29 WAR 479 [7] - [17]; Todd v Novotny [2000] WASC 308; and Wentworth v Rogers (Unreported, NSWSC, 28 April 1995). It contends that there is no new evidence put on by Dr Goh which would warrant the court entertaining the application again. It supports that contention by reference to evidence as to the events which have transpired since the interlocutory injunction was refused.
The thrust of the defendant's submissions as to the events since September 2014 is that, despite difficulties which it contends have arisen by reason of the way Dr Goh has gone about encouraging patients to sign the transfer requests, and the sheer volume of requests, the arrangements have resulted in the provision in excess of 2,700 copies of patient files. It contends that those circumstances do not warrant reconsideration of the injunction application.
Consideration of the issues
There is a distinction between the order now sought and the interlocutory injunction sought in September 2014. The mandatory injunction sought in September 2014 was for delivery of the files themselves. The application was founded upon the proposition that Dr Goh was entitled to those files as the owner of them. The interim arrangement, which I accepted ameliorated much of the prejudice asserted by Dr Goh, was for the delivery of copies of files requested. The orders now sought relate only to copies of the files, not the files themselves. It follows that the application now made is not correctly categorised as a rehearing of the original interlocutory injunction application. It is, however, an application for a different interlocutory mandatory injunction.
The present application is based upon events which have occurred since September 2014. Evidence of those matters is, in my view, properly considered as evidence of circumstances since the injunction was refused, which are relevant to the question of whether the relief now sought should be granted. I do not, therefore, accept the defendant's submission that the application cannot be entertained because of an absence of evidence of a change in circumstances.
Having said that, I do not consider that the evidence warrants the grant of the orders sought. What the evidence establishes is that a very substantial number of requests for files have been made. Whilst it can be accepted that some requests have not been met in a timely way, it would appear that the identified cases of substantial delay mostly relate to requests made in the late part of 2014, when arrangements for the provision of copies were in their early days. The overwhelming impression to be gained from the evidence is that from the early months of this year up until now, requests have been met in a timely manner. It is undoubtedly a substantial administrative burden for the defendant to deal with the high volume of requests. It is meeting those requests at its own costs. It would appear that explanations in relation to any long outstanding requests have now been provided, albeit through these proceedings.
I do not consider that the generalised assertions by Dr Goh regarding prejudice to the treatment of patients should be attributed much weight. No specific instances of difficulties in treatment are identified. Arrangements appear to be in place for the provision of urgent copies of files when requested. Although it can be accepted that patient notes are important for the ongoing treatment of patients, the existing arrangements have resulted in the provision of thousands of copies of notes.
Although it may have taken some time to work itself through, it appears to me, on balance, that the interim arrangement contemplated at the time the initial interlocutory injunction was refused is working in large part. Given the volume of requests, some occasional difficulties might reasonably be expected, particularly given what appears to be an acrimonious relationship between the parties. I am not satisfied that the current arrangements are leading to any significant prejudice either for Dr Goh or his patients, and I do not consider that the coercive powers of the court should be exercised simply because, in a proportionally small number of cases, records have not been provided in a timely way, or perhaps more accurately, explanations for their non‑provision have not been provided in a timely way. I am reinforced in that view by Dr Goh's failure to progress his action since November last year.
The application for further orders should be refused.
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