Herouz and Herouz
[2020] FamCA 478
•15 June 2020
FAMILY COURT OF AUSTRALIA
| HEROUZ & HEROUZ | [2020] FamCA 478 |
| FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – Review of Registrar’s decision to strike out two (2) subpoenas issued by the wife to the husband’s former employers and granting the husband the first right of inspection in relation to a third subpoena filed by the wife to the husband’s treating psychologist – Where the wife contends the subpoenas are appropriate and relevant – Where the wife contends that the Registrar granting the husband the first right of inspection of the third subpoena is inappropriate and unnecessary – Where the husband contends that the subpoenas serve no purpose and are a ‘fishing expedition’ – Orders made upholding the decision of the Registrar and dismissing the wife’s Application for a Review. |
| Family Law Act 1975 (Cth) s 37A. Family Law Rules 2004 (Cth) r 15.31(3), 18.10(1). |
| A & The A Group (2006) FLC 93-271 Alister v R (1984) 154 CLR 404 Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) (2005) 92 SASR 419 Killorgan Investments Pty Ltd v Baycorp Advantage Business Services Limited and Ors [2002] VSC 270 Macks v Tuck & Ors & QBE Insurance (Australia) Ltd (No.4) [2007] SASC 255 Martin & Martin and Anor (No. 2) [2014] FamCA 232 Railways v Small (1938) 38 SR(NSW) 564 at 574-5 T & D [2006] FamCA 1560 Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476 |
| APPLICANT: | Ms Herouz |
| RESPONDENT: | Mr Herouz |
| FILE NUMBER: | SYC | 4915 | of | 2017 |
| DATE DELIVERED: | 15 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | by way of written submissions |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | P. Cummings SC |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley Lawyers |
| COUNSEL FOR THE RESPONDENT: | J. Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | Millennium Lawyers |
Orders
The Application in a Case filed by the wife on 29 May 2020 seeking a review of Orders made by Registrar McNamara made on 28 May 2020 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Herouz & Herouz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4915 of 2017
| Ms Herouz |
Applicant
And
| Mr Herouz |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern an Application for Review of a decision made by Registrar McNamara on 28 May 2020 striking out two (2) subpoenas filed by Ms Herouz (“the wife”) and granting Mr Herouz (“the husband”) the first right of inspection in relation to a third subpoena filed by the wife.
Relevant background
For the purpose of these proceedings, the following background is relevant.
The substantive proceedings before the Court concern competing Applications in respect to property and parenting issues arising out of the breakdown of the parties’ relationship.
In 1975, the husband was born. He is currently aged 44 years.
In 1980, the wife was born. She is currently aged 39 years.
In 2005, the parties were married.
In 2007, the parties’ child, D, was born. He is currently aged 13 years.
In 2009, the parties’ child, E, was born. He is currently aged 10 years.
In 2012, the parties’ child, F, was born. She is currently aged 8 years.
From March 2016 until 23 September 2016, during the marriage of the parties, Ms K of L Centre was the parties’ joint treating psychologist.
From July 2016 until May 2018, the husband was employed at M Pty Ltd.
On 16 June 2017, the parties separated on a final basis.
Following separation, the husband continued to attend upon Ms K for treatment.
From July 2018 until February 2019, the husband was employed at M Company.
On 29 January 2019, the Chapter 15 Single Expert Family Report prepared by Dr J was released.
On 1 April 2019, the Independent Children’s Lawyer caused a subpoena to Ms K of L Centre to be issued for the clinical notes of the treatment of the parties. No Notice of objection was filed in relation to those documents.
On 18 December 2019, I made Orders, inter alia, setting this matter down for final hearing for three (3) days commencing on 22 June 2020.
On 14 May 2020, the wife caused subpoenas to be issued to the following:
a)M Company, the husband’s former employer;
b)M Pty Ltd, the husband’s former employer; and
c)Ms K of L Centre, the husband’s treating psychologist.
On 21 May 2020, the husband filed a Notice of objection in respect to each of the above three (3) subpoenas.
On 28 May 2020, Registrar McNamara made the following Orders:
1. I note that this matter was listed before me today in relation to the Notices of Objection – Subpoena filed by the respondent husband in relation to subpoenas issued on behalf of the applicant wife to:
·M Company (S5)
·M Pty Ltd (S6); and
·Ms K (S7)
2. The subpoenas issued to:
·M Company (S5) and
·M Pty Ltd (S6)
are struck out.
3. Leave is granted to the respondent husband’s legal representative to inspect the documents produced upon subpoena in the first instance for a period of 14 days.
4. The issue of inspection of the documents produce by Ms K by the applicant wife’s legal representative and the ICL is adjourned for further hearing by telephone at 4.00pm on 10 June 2020.
…
6. The costs of the respondent husband in the sum of $1,800.00 (quantified as 2 hours of counsel’s time) are reserved to 10 June 2020.
On 29 May 2020, the Application in a Case for Review filed 29 May 2020 was referred to her Honour Justice Henderson. By email on that same day, her Honour proposed that the matter be dealt with in Chambers and any written submissions be sent to Chambers by no later than 4pm on 5 June 2020. No objection was raised by either party for that course of action.
Application
The wife seeks, as set out in her Application in a Case filed 29 May 2020, the following:
1. That pursuant to Section 37A(9) of the Family Law Act 1975 (Cth), the decision made by Registrar McNamara of the Family Court of Australia on 28 May 2020 to strike out the Subpoena issued to M Company on 14 May 2020 and Subpoena issued to M Pty Ltd on 14 May 2020 be reviewed by a Judge of the Family Court of Australia.
2. That pursuant to Section 37A(9) of the Family Law Act 1.975 (Cth), the decision made by Registrar McNamara of the Family Court of Australia on 28 May 2020 granting the Respondent first right of inspection for a period of fourteen (14) days in relation to the Subpoena issued to Ms K on 14 May 2020 be reviewed by a Judge of the Family Court of Australia.
Evidence
The wife relies upon the following:
a)Application in a Case filed 29 May 2020;
b)Affidavit of the wife filed 12 May 2020;
c)Subpoena to M Company filed 14 May 2020 (“subpoena no. 1”);
d)Subpoena to M Pty Ltd filed 14 May 2020 (“subpoena no. 2”);
e)Subpoena to Ms K of L Centre filed 14 May 2020 (“subpoena no. 3”);
f)Single Expert report of Dr J dated 29 January 2019; and
g)Written submissions provided to the Court on 5 June 2020.
The husband relies upon the following:
a)Affidavit of the husband filed 12 May 2020;
b)Notice of objection filed 21 May 2020 to the subpoena to M Company;
c)Notice of objection filed 21 May 2020 to the subpoena to M Pty Ltd;
d)Notice of objection filed 21 May 2020 to the subpoena to Ms K of L Centre; and
e)Written submissions provided to the Court on 5 June 2020.
The relevant law
The following summary of the relevant legal principles largely draws upon that which I have previously articulated in Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905.
Section 37A of the Family Law Act 1975 (Cth) (“the Act”) relevantly sets out delegation of powers to Registrars. Sub-sections 37A(9) and (10) are as follows:
(9)A party to proceedings in which a Registrar has exercised any of the powers of the Court pursuant to a delegation under subsection (1) may, within the time prescribed by, or within such further time as is allowed in accordance with, applicable Rules of Court made by the Judges or a majority of them for the purposes of this subsection, apply to the Court to review that exercise of power.
(10) The Court may, on application under subsection (9) or of its own motion, review an exercise of power by a Registrar pursuant to a delegation under this section and may make such order or orders as it considers appropriate with respect to the matter with respect to which the power was exercised.
Rule 18.10(1) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing, in other words proceeds by hearing de novo. The review of a Registrar’s determination is an original hearing in the sense that error does not need to be established: Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley (2019) FamCA 101 at [7].
The power of the Court to issue a subpoena is set out in Part 15.3 of the Rules. Equally, the Court has power to set aside a subpoena so issued: Hatton v Attorney General of the Commonwealth of Australia & Ors (2000) FLC 93-038 (“Hatton”).
The relevant stages of subpoenaing a third party to produce documents to the Court were described in Hatton (supra) at [38], by reference to National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372, as being a three-step process:
The first [step] is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise…This application by the applicant companies concerns the first step referred to in Hatton (supra)….
The issues involved in this Application for review involves consideration of the first step in respect to all three subpoenas and the second step in respect to the subpoena no.3.
A subpoena must only be used for a legitimate forensic purpose. In considering this issue, it is unnecessary for the party issuing the subpoena to establish actual relevance. However, the party issuing the subpoena must “demonstrate [that] the documents have an apparent relevance to the issue or issues before the Court and in respect of which the subpoena was filed”.[1]
[1] A & The A Group (2006) FLC 93-271 at 80,596.
In that context, it is not enough for a party seeking to uphold a subpoena to show that the documents might lead to “a train of inquiry” which might assist his or her case.[2] This is to be distinguished from the process of discovery where such a motive may be permissible.[3]
[2] McMillan Incorporated v Bishopgate Investment Trust (1993) 4 All ER 998 at 1005.
[3] See Mulley v Manifold (1959) 103 CLR 341 per Menzies J at 345 referred to in T & D [2006] FamCA 1560 at [6].
While it is the case that the bar for establishing relevance is not high,[4] the party seeking to rely upon the subpoena must, nonetheless, establish that it is “on the cards” that the documents would bear upon and have relevance to the issues in the substantive proceedings.[5]
[4] Martin & Martin and Anor (No. 2) [2014] FamCA 232 at [29] referring to Killorgan Investments Pty Ltd v Baycorp Advantage Business Services Limited and Ors [2002] VSC 270 at [7].
[5] Martin & Martin and Anor (No. 2) [2014] FamCA 232 at [28] referring to Alister v R (1984) 154 CLR 404 per Gibbs CJ.
Expressed in the reverse, it is not legitimate to issue a subpoena on the basis of “an outside chance” that something useful might turn up in the documents.[6]
[6] R v Ridgeway (1998) 72 SASR 73 at 101.
In terms of “fishing”, it is not legitimate for a party to issue a subpoena with a view to determining whether the issuing party has a case at all.[7]
[7] See Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476 at 85,856 referring to Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 574-5 per Jordan CJ.
In Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476, Coleman J undertook a useful analysis of the relevant authorities and noted at 85,857:
There is a material distinction between seeking production of documents which, if they exist, can be readily identified and produced in circumstances where such documents may be admissible in evidence, and seeking the production of unspecified documents in the hope that, when produced, they may reveal something capable of being admissible in evidence. The former course is permissible according to general law, and… the Act. The latter offends both.
In that same context, in Ryder & Lee [2009] FamCA 531, Burr J adopted the following passage from the decision of Gray J in Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) (2005) 92 SASR 419 (“Andrew Garrett Wine Resorts v NAB (No.6)”) wherein his Honour said at 428:
It is not enough for the party issuing the subpoena to raise a speculative possibility that the documents sought would assist the resolution of the dispute. The party supporting the subpoena must demonstrate that the documents sought in the subpoena are of real relevance to the issues in the case. It must be more than an outside chance that something useful might turn up in the documents.
In summary, it is not enough for a party issuing the subpoena to raise a “speculative possibility” that the documents sought would assist the resolution of the dispute. While the bar is not high, the party supporting the subpoena must demonstrate that the document(s) sought in the subpoena are of an “apparent relevance” to the issues in the proceedings. It must be more than “an outside chance” that something useful might turn up in the documents.
As has been noted, a subpoena that is tantamount to discovery is likely to be set aside as an abuse of process. As an extension of that principle, it is impermissible for a subpoena to be used to rectify inadequate discovery by a party to the proceeding. In Macks v Tuck & Ors & QBE Insurance (Australia) Ltd (No.4) [2007] SASC 255 at [49], Bleby J said that in such a case:
It seems to me that the more appropriate course for the defendants to follow is to seek an order for further and better discovery from the plaintiffs, if they have a genuine concern about the adequacy of the plaintiff’s discovery and if they can point to reasons why that appears to be inadequate.[8]
[8] See also Ryder & Lee [2009] FamCA 531 at [42].
As noted, Subpoena no. 3 has been issued to Ms K, the husband’s treating psychologist. Subpoenas no. 1 and no. 2 have been issued to two of the husband’s former employers.
The documents sought in each subpoena are set out below.
Contentions
Contentions of the wife
The wife contends that the subpoenas issued to the husband’s former employers are appropriate because the documents produced will be relevant to the issue of determining the parties’ post-separation contributions and also in respect to the parties’ future earning capacity. The wife further contends that the document will be relevant to the consideration of the husband’s parenting capacity.
The wife contends that her conduct in issuing the subpoenas needs to be seen in the context of the husband failing, according to the wife, to comply with his obligation to provide full and frank disclosure. The wife further contends that, in his trial Affidavit, the husband has failed to provide evidence regarding his post-separation employment.
Relevantly, at paragraphs 31 to 33 of her written submissions, it is contended that:
…The Respondent Husband does not refer in his Affidavit to his employment with either M Pty Ltd or N Company, any redundancy or termination payments he may have received, any issues that he may have had in the workplace or his reasons for leaving each of those positions of employment. As these are property proceedings, the Respondent Husband’s lack of evidence and transparency in relation to his employment with both M Pty Ltd and N Company causes the Applicant Wife to have significant concern. The Applicant Wife requires the documents to be produced pursuant to the Subpoenas in order that she may have the relevant evidence to put to the Court regarding income earned by the Respondent Husband prior to and, more significantly, post-separation, any termination payments he may have received and his ongoing income earning capacity.
31. In relation to the parenting proceedings, the Applicant Wife also contends that the Respondent Husband’s personnel files with both M Pty Ltd and N Company contain apparently relevant material. As indicated in both the Applicant Wife’s evidence and Dr J’s report, the Applicant Wife has maintained the Respondent Husband is an angry and aggressive person, particularly since separation. In circumstances where the Respondent Husband has left three (3) positions of employment in the relatively short time since separation occurred in July 2017 and wherein it would be expected that if the Applicant Wife’s contentions be about the Respondent Husband’s personality are accurate, interpersonal difficulties within his positions of employment are potential contributors to the termination of each of those positions, making the Respondent Husband’s personnel file apparently relevant in relation to the Court determining the Respondent Husband’s parenting capacity.
32. In addition, the leave records of the Respondent Husband will also be relevant in determining the availability of the Respondent Husband to spend time with the children given that he seeks shared care
33. The Respondent Husband no longer works for those companies and, to the extent that it is relevant to the determination of the Court, there does not appear to be any prejudice to the Respondent Husband to those documents being inspected.
In respect to the subpoena no. 3 issued to Ms K, at paragraph 19 of her written submissions, it was contended that:
…documents in relation to the Respondent Husband’s current therapy provided by Ms K are not just apparently relevant but important to the determination of the issues put in dispute by the Applicant Wife and the criticisms made of the Respondent Husband by both the Applicant Wife and Dr J. In particular, the updating material provided from Ms K will show whether the Respondent Husband has had proper regard to Dr J’s criticisms of him and worked to address those matters since April 2019 to date.
And further, at paragraphs 21 to 22 of her written submissions, that:
In circumstances where the updating documents produced by Ms K are patently relevant and the proceedings are listed for a three (3) day Hearing commencing on 22 June 2020, the continued denial of access to the updating documents produced by Ms K, which the Respondent Husband has the right to inspect, is unfairly prejudicing the Applicant Wife from preparing for the Final Hearing.
It is submitted that it is clear that in these parenting proceedings in which the Applicant Wife has made significant allegations of family violence and raises issues with the Respondent Husband’s parenting capacity and conduct while caring for the children that the updated documents from the Respondent Husband’s treating psychologist Ms K are not only apparently relevant but potentially important to determining issues regarding the Respondent Husband’s anger, violent tendencies and parenting incapacity that the Applicant Wife puts into issue.
The wife further contends that it was unnecessary and inappropriate for the Registrar to grant the husband first right of access to documents produced by his therapist, Ms K. For reasons which I set out below, I find that submission to be without merit.
Contentions of the husband
The husband contends that the documents sought in the subpoenas to the husband’s employers’:
a. Are irrelevant to the issues in this case; and
b. Serve no purpose and are a “fishing expedition”. The Applicant Wife in the proceedings is requesting the documentation in an attempt to determine whether a case exists.
In respect to subpoenas no.1 and no.2, the husband contends, at paragraph 12 of his written submissions, that:
[The husband’s] employment and/or secondment with those entities is not a matter in issue and nor has any evidence been sought to be adduced touching upon the quality of his employment and/ or secondment, the length of it, or his performance at work. Both subpoena in those circumstances are cast as fishing nets. There is no connection identified to any matter outlined by the wife concerning the welfare of any of the children (or any matter requiring examination as mandated in Section 60CC) to be found in his employment records supported by evidence in her affidavit material.
For reason’s which I set out below, I respectfully agree with the substance of the husband’s submissions in respect to the second of the objections, that is, the subpoenas are in the nature of a fishing expedition.
The husband contends, as set out at paragraphs 16 to 19 of his written submissions, that the subpoena to Ms K should be set aside on the following basis:
16. The third subpoena directed to Ms K (psychologist) is the second subpoena to her, the first having been issued by the ICL some time ago. It is common ground that both parties attended upon her [24] (wife's affidavit 12.05.20) for a period of time with the Husband continuing to see her for a period of time thereafter.
17. An earlier subpoena to Ms K was issued and answered without objection. It is understood the produced documentation was available for inspection by the Wife prior to her latest further Amended Application being constructed and filed on 12 May 2020. It must follow she did not find anything in those notes sufficient to justify an alteration to the Orders sought by her. The second subpoena is therefore nothing more than a fishing expedition in the hope of finding something that might support something.
18. The Wife has not given any evidence of a material event or concession made to Ms K, her entire evidence on that topic being contained in [24]-[25] of her 12.05.20 affidavit.
19. The subpoenas in those circumstances should be set aside.
(Emphasis in original)
The Subpoena no. 1
The schedule to the subpoena issued to M Company sought the production of the following:
1. A copy of this subpoena.
2. Originals and/or copies of the complete personnel file in respect of the employment of Mr Herouz, born in 1975.
The objection
As set out in his Notice of objection, the husband objected to the production of any documents specified in the subpoena no. 1 as the documents:
a. Are irrelevant to the issues in this case; and
b. Serve no purpose and are a “fishing expedition”. The Applicant Wife in the proceedings is requesting the documentation in an attempt to determine whether a case exists.
The Subpoena no. 2
The schedule to the subpoena issued to M Pty Ltd sought the production of the following:
1. A copy of this subpoena.
2. Originals and/or copies of the complete personnel file in respect of the employment of Mr Herouz, born in 1975.
The objection
As set out in his Notice of objection, the husband objected to the production of any documents specified in the subpoena no. 2 as the documents:
a. Are irrelevant to the issues in this case; and
b. Serve no purpose and are a “fishing expedition”. The Applicant Wife in the proceedings is requesting the documentation in an attempt to determine whether a case exists.
Consideration subpoenas no’s 1 and 2
I accept that, in circumstances where the wife takes issue with the adequacy of the husband’s disclosure, she had a legitimate forensic purpose in seeking the production of documents evidencing income and any redundancy or termination payments he may have received from his past employers. It is understandable that the wife requires those documents “in order that she may have the relevant evidence to put to the Court regarding income earned by the Respondent Husband prior to [separation]” and further to contend, by way of extrapolating his past earning, that he has an earning capacity above and beyond that which he has achieved in the period post-separation.
However, both subpoenas no.1 and no.2 go much further than that. They seek the “complete personnel file” of the husband. The reasons advanced by the wife for seeking that information are set out above.
The wife is, with respect, clearly speculating as to whether the husband experienced “interpersonal difficulties” during his employment and is further speculating as to both the manner in which the husband’s employment was terminated, that is, whether it was voluntary, by mutual agreement, or by dismissal. The wife then speculates that, if it was the latter, then a “potential contributor” to the decision by each of those employers to terminate the husband’s employment may have been “interpersonal difficulties” which the wife, as noted, speculates that the husband may have had in those places of employment.
In other words, insofar as the wife is seeking the entire personnel file of the husband from each of his former employers, she is doing so on the basis of a “speculative possibility” that the documentation will support her case. That is not a legitimate purpose to issue a subpoena: Andrew Garrett Wine Resorts v NAB (No. 6) (supra).
In those circumstances, I respectfully agree with the decision of the Registrar to disallow both subpoena’s no. 1 and no. 2.
The Subpoena no. 3
The schedule to the subpoena issued to Ms K of L Centre sought the production of the following:
1. A copy of this subpoena.
2. Originals and/or copies of all documents held by you including but not limited to records, clinical notes and writings, file notes, investigations, appointment dates, reports, records of referral, prescriptions of medication and other documents in relation to any medical history, anger management, treatment, diagnosis, mental health treatment plans and prognosis in respect of Mr Herouz, born in 1975, for the period 1 April 2019 to date of production.
The objection
As set out in his Notice of objection, the husband objected to the production of any documents specified in the subpoena no. 2 as the documents:
a. Are irrelevant to the issues in this case; and
b. Serve no purpose and are a “fishing expedition”. The Applicant Wife in the proceedings is requesting the documentation in an attempt to determine whether a case exists.
Consideration Subpoena No. 3.
The husband acknowledges the wife’s contention that the parties:
… had a highly conflictual relationship (at [20] of her Primary Affidavit filed 12 May 2020), and contends the children have been assaulted by the Husband (at [34]), contends that there have been changes in behaviour and mental health in the children, that the children's behaviour had been deteriorating [67], and expresses concerns of an inability to co-parent [148].
The husband submits, however, that those contentions are inconsistent with the orders sought by the wife and, in particular, that the wife concedes, in the orders she seeks, that it is appropriate for the children to spend time with the husband.
It is not appropriate, at this stage of the proceedings, to anticipate an objection to paragraphs of the wife’s evidence based on claims of relevance. The information sought in the subpoena to Ms K is essentially in the nature of an updating subpoena, seeking documentation in respect to the period that includes the period subsequent to a previous subpoena issued by the Independent Children’s Lawyer, noting that no objection was taken to that earlier subpoena. In those circumstances and where the material sought by the wife has apparent relevance to the contentions advanced by the wife, I respectfully agree with the decision of the Registrar to allow the subpoena.
Consideration – husband’s first right of access to documents produced pursuant to Subpoena no. 3.
It is to be noted that the documents sought from Ms K include documents relating to the husband’s “medical history”.
Rule 15.31(3) of the Rules relevantly provides:
Objection relating to inspection or copying of medical records
(3) If a subpoena for production requires the production of a person's medical records, the person may, before the day (the production day) on which production in accordance with the subpoena is required, notify the Registry Manager in writing that the person wishes to inspect the medical records for the purpose of determining whether to object to the inspection or copying of the records.
(4) If a person (the potential objector) gives notice under subrule (3):
(a) the potential objector may inspect the medical records; and
(b) if the potential objector wishes to object to the inspection or copying of the records--the potential objector must, within 7 days of the production day, give written notice of the objection and the grounds for the objection, to the Registry Manager; and
(c) unless the court orders otherwise, no other person may inspect the medical records until the later of:
(i) 7 days after the production day; and
(ii) if the potential objector makes an objection under paragraph (b)--the end of the hearing and determination of the objection.
That rule reflects a basic courtesy that a person should have the first right of inspection of medical records that may contain highly personal details including those which may have no relevance to the proceedings. The Registrar acted entirely appropriately and in accordance with r 15.31 of the Rules in granting the husband the first right of inspection of the records produced by Ms K.
Conclusion
Accordingly, I am satisfied each of the decisions of the Registrar, which are the subject of this review Application, were correct and entirely appropriate. In those circumstances, I dismiss the wife’s Application in a Case filed on 29 May 2020.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 15 June 2020.
Associate:
Date: 15 June 2020
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