Hobbs v Tym

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Hobbs v Tym & Anor

Citation:

[2015] ACTSC 276

Hearing Date:

4 September 2015

DecisionDate:

4 September 2015

Before:

Mossop AsJ

Decision:

See [37] and [41]

Category:

Interlocutory Application

Catchwords:

PROCEDURE – Discovery – application for further discovery in proceeding concerning psychiatrist’s treatment of patient – discoverability of documents determined by application of appropriate test considered in light of facts put in issue by pleadings – further discovery ordered

Legislation Cited:

Health Practitioner Regulation National Law (ACT) s 216

Court Procedures Rules 2006 (ACT) r 606

Cases Cited:

Associated Dominion Assurance Society Pty Ltd v John Fairfax & Sons Ltd (1952) 72 WN (NSW) 250

Carlisle v Filaria [2003] ACTSC 25

W A Pines Pty Ltd v Bannerman (1980) 30 ALR 559

Parties:

Nathan David Hobbs (Plaintiff)

Robert Tym (First Defendant)

R Tym Pty Ltd (Second Defendant)

Representation:

Counsel

Mr B Jullienne (Plaintiff)

Mr J Johnson (First and Second Defendants)

Solicitors

Blumers Personal Injury Lawyers (Plaintiff)

Minter Ellison (First and Second Defendants)

File Number:

SC 12 of 2014

Introduction

1. The plaintiff has brought proceedings against the first defendant, a former psychiatrist, and the second defendant, a company of which the first defendant was the director, arising out of treatment of the plaintiff during 2011.  The plaintiff alleges that the first defendant’s treatment of him, and in particular his alleged misdiagnosis of attention deficit hyperactivity disorder and prescription of dexamphetamine, was negligent and in breach of contract.  The plaintiff claims damages.

1. A defence has been filed substantially denying the allegations.

1. Discovery has been provided by the defendants.  That discovery is narrow in compass and limited to the documents immediately relating to the two consultations between the plaintiff and the first defendant and some treating notes of other doctors.  The plaintiff has asserted that a broader range of documents should have been discovered.

1. By application in proceeding filed 24 July 2015 the plaintiff has sought further discovery of documents identified as documents relating to:

(a)allegations by the Medical Board of Australia or AHPRA that the first defendant misdiagnosed patients with ADD and/or wrongly prescribed dexamphetamine;

(b)proceedings between the Medical Board of Australia and the first defendant: OR 16 of 2011 in ACT Civil and Administrative Tribunal (ACAT);

(c)all peer review reports obtained by the Medical Board of Australia relating to the first defendant including the report of Dr Milch;

(d)the first defendant’s practice of diagnosing ADD including all essays, articles or studies, peer reviewed or not, written by the first defendant in relation to diagnosis of ADD;

(e)the first defendant’s ability to practise at the time of the consultations including:

(1)       his practising certificate;

(2)any documents relating to his compliance with continuing professional development or associated requirements;

(f)the first defendant’s decision to withdraw from practice.

1. I note at this point that the defence denies that the first defendant diagnosed the plaintiff with attention deficit hyperactivity disorder (ADHD) and says that the first defendant diagnosed the plaintiff with attention deficit disorder (ADD).  The…