Goh v Murdoch Eye Pty Ltd [No 2]

[2015] WASC 290

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)

1. 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).

2. 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…