Hobbs v Tym
[2015] ACTSC 276
•4 September 2015
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
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.
A defence has been filed substantially denying the allegations.
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.
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.
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 application in proceeding appears to accept the point taken by the defence and refers to ADD rather than ADHD. In these reasons I will refer to the diagnosis as one of ADD rather than ADHD.
Evidence
Two schedules of correspondence were tendered, one by the plaintiff and one by the defendants. Those schedules largely disclosed the correspondence which crystallised the dispute between the parties over the scope of discovery. The plaintiff’s schedule also contained a transcript of an application to ACAT for a non-publication order in relation to proceedings brought against the first defendant by the Medical Board of Australia. It also contained correspondence from the Australian Health Practitioner Regulation Agency (AHPRA) in response to the issuing of a notice for non-party production to AHPRA. I will return to deal with this evidence as necessary below.
Submissions
The plaintiff has submitted that the additional documents sought are within the scope of the defendants’ obligation to provide discovery. He has submitted that the documents are relevant because:
(a)they disclose the manner of treatment of other patients with ADD by the first defendant which the plaintiff submits is likely to disclose a pattern consistent with what is alleged to have occurred in the plaintiff’s case;
(b)the documents, in particular certain expert reports relied upon by the Medical Board of Australia for the purposes of the ACAT proceedings, go to the issue of foreseeability of harm which is a fact in issue.
The plaintiff referred to the test for discovery articulated in the decision of Gray J in Carlisle v Filaria [2003] ACTSC 25 at [13] (‘Carlisle’).
The plaintiff noted that he had attempted to obtain documents relating to the Medical Board of Australia from its successor AHPRA however had received a letter suggesting that it would take the agency substantial work by a solicitor to review the documents prior to them being released and requesting whether the plaintiff was prepared to fund that process. The plaintiff has not sought to obtain any documents from the ACAT file.
(I interpolate at this point that while the nature of the response from AHPRA may have been provoked by the breadth of the notice which it was given, the approach of that agency tended to overstate the effect of s 216 of the Health Practitioner Regulation National Law (ACT) since the obligation in that provision is subject to other legal obligations such as the requirement to comply with a court order: see s 216(2)(c).)
The position adopted by the defendants is:
(a)any proceedings before the Medical Board of Australia did not result in any orders or findings being made against the first defendant and hence documents relating to those proceedings are not relevant;
(b)even if there are some additional documents which might be discoverable, whether or not the defendants should be ordered to disclose them needs to be assessed by reference to the factors referred to in r 606(3) of the Court Procedures Rules 2006 (ACT) (the Rules) which tend against the making of any further order;
(c)documents relating to the treatment of other patients are not relevant and discovery should be confined to the documents relating to the treatment of the plaintiff;
(d)if documents relating to the treatment of other patients only go to matters of credit, further discovery should be refused;
(e)discovery would be oppressive because insofar as records relating to other patients were required to be disclosed those patients would need to be contacted by the defendants;
(f)documents relating to the publication of articles or papers and documents relating to Dr Tym’s practising certificate are irrelevant;
(g)discovery of documents “would demand an unreasonable level of effort, time and cost such as would be oppressive for the defendants to have to discover in your clients claim”.
The defendants referred to the decision of the Full Court of the Federal Court in W A Pines Pty Ltd v Bannerman (1980) 30 ALR 559 (‘Bannerman’) in particular at 567 and 575. In that case Brennan and Lockhart JJ made it clear that a bare allegation in a statement of claim did not entitle the appellant to discovery. In that case the discovery sought was discovery as to the state of mind of the Chairman of the Trade Practices Commission that was necessary to permit the issuing of a notice under s 155 of the Trade Practices Act 1974 (Cth). Brennan J characterised at 567 the applicant for discovery as attempting to “ransack [the Chairman’s] documents in the hope of making a case”. Lockhart J referred at 575 to the statement of Owen J in Associated Dominion Assurance Society Pty Ltd v John Fairfax & Sons Ltd (1952) 72 WN (NSW) 250 at 254 that: “A ‘fishing expedition’, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not”. Having referred to that authority Lockhart J said at 575 that his Honour had “no doubt that the appellant is seeking to use the weapons of discovery and interrogatories to find out if it has a case of which it presently knows nothing.”
Consideration
The scope of documents required to be discovered is as described in the judgment of Gray J in Carlisle at [13] where his Honour said:
13.As far as discovery is concerned, the question is not one of admissibility or indeed of relevance in the Evidence Act 1995 (Cth) sense where the test of relevance is that of rationally affecting (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings (see s 55 Evidence Act 1995 (Cth)). There must be a relationship to matters in issue but it does not have to satisfy the relevance test that the Evidence Act requires. As Menzies J said in Mulley v Manifold (1959) 103 CLR 341 at 345 -
Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party's own case or damage that of his adversary.
Similarly, it was said in The Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 63 per Brett LJ that, for the purposes of discovery, a document is relevant if it may, not must, either advance a party's own case or damage the opponent's case, or alternatively would lead to a course of inquiry which would do so. Those tests are wider than the test of relevance that I suspect was being urged on me by counsel for the appellant and, in any event, seem to me to make the documents sought by the plaintiff discoverable in light of the amendment now made to the statement of claim.
Rule 606(3) of the Rules provides:
(3)Before making an order under subrule (1) [the rule relating to orders about disclosure], the court must have regard to the following matters:
(a)the principle that disclosure of documents in a proceeding should be limited to disclosure that is reasonably necessary for fairly disposing of the proceeding, or part of the proceeding, or for saving costs;
(b)the likely relevance and significance, in relation to the proceeding, of the documents, or particular documents, that may be discovered;
(c)the likely time, cost and inconvenience of disclosing documents or particular documents.
The critical question appears to me to be whether or not the documents within the classes sought fall within the scope of the test outlined in Carlisle in the light of the facts put in issue by the pleadings in the present case.
There are a number of points which I should record about the evidence and the basis upon which the application was argued.
First, it appears that Dr Tym no longer practises as a psychiatrist.
Second, I was told that the proceedings brought by the Medical Board of Australia did not proceed to a hearing and that no findings were made in relation to whatever the conduct alleged by the Board was. On the evidence before me it is not possible to say whether or not there is a link between the existence or determination of the Board proceedings and the fact that Dr Tym no longer practises.
Third, within the transcript of the proceedings before ACAT there is a reference to the material that had been served on Dr Tym or his solicitors as follows:
The material we have been served with to date relates to, or rests upon it seems, and only rests upon, two reports of a psychiatrist dated 24 February 2010, some 18 months ago.
Fourth, it was suggested during the argument that Dr Tym’s practice in relation to the diagnosis of ADD and the prescription of dexamphetamine may have been different to the practice of other doctors. That is reflected most clearly in paragraph (d) of the request for additional discovery but potentially also covered by the other items. However there was not before me any evidence which would indicate that he had a general practice which might differ from that of other doctors.
Before dealing with the specific categories sought in the application I will deal in general terms with the submissions made by the parties which focused upon whether records of, or complaints relating to, the treatment of other patients could be discoverable in the present case. The plaintiff submitted that records relating to such complaints might be relevant in the same way as records of complaint of a slippery step might be relevant in a slip and fall case. The defendants submitted that such records were not relevant and, even if they were, should not be ordered to be discovered by reason of the application of the principles in r 606(3) of the Rules.
The debate about discoverability was conducted at a level of abstraction because it is not clear whether the Medical Board of Australia alleged that the first defendant misdiagnosed patients with ADD or wrongly prescribed dexamphetamine or whether that was the subject matter of the proceedings in ACAT. In those circumstances the passages to which I have referred in Bannerman might be applicable but for the reason which I will come to below.
In order to test the competing submissions of the parties I will address the question on the basis that the defendants have within their possession, custody or control documents disclosing allegations by patients or the Medical Board of Australia that the first defendant misdiagnosed patients with ADD or wrongly prescribed dexamphetamine. In my view complaints from other patients alleging inappropriate diagnosis of ADD or inappropriate prescription of dexamphetamine may be discoverable in this case. Notwithstanding the attractively simple submission on the part of the defendants that each patient’s circumstances must be considered on their own, complaints in relation to diagnosis or prescription may lead to a course of enquiry that would either advance or damage the plaintiff’s case. If, for example, there were a number of complaints raising allegations against Dr Tym that were similar to the complaints made in the present case then that material may be relevant (either directly or by leading to a course of enquiry) to at least:
(a)determining what took place at the consultations between Dr Tym and the plaintiff as being either consistent or inconsistent with some usual practice; or
(b)determining whether the approach to diagnosis and prescription reflected a broader approach to the treatment of ADD which was either consistent or inconsistent with what a reasonable practitioner would do in the circumstances.
For these reasons, in my view it cannot be said as a matter of generality that complaints or allegations relating to the treatment of other patients cannot be discoverable in the present case.
This conclusion is significant because it is apparent that the defendants have taken the approach that they have as a result of the application of such a general principle. That is apparent because they have not actually obtained and hence have not examined the documents relating to the ACAT proceedings from the solicitors who acted on behalf of Dr Tym in those proceedings. As a consequence there is no evidence and it is not possible to say whether the allegations relate to conduct with a subject matter similar to that which is alleged to have occurred in the present case or whether it is completely different. Any instructions from Dr Tym to his present solicitors about the subject matter of the complaints or the proceedings were not disclosed. It appears therefore that the affidavit verifying the list of documents is necessarily based upon a misconception as to the scope of discoverable documents in the circumstances of this case. That is, a general principle has been applied that excludes from discovery documents relating to other clients and no consideration has been given to whether or not documents relating to the treatment of other clients could be discoverable when applying the relevant test. For the reasons that I have articulated, in my view, that involves an application of an incorrect test. It is those circumstances, namely the application of an incorrect test by a party responsible for discovery, which take this case out of the category in Bannerman.
In those circumstances in my view it is appropriate that a further affidavit of discovery be sworn and if necessary a supplementary list of documents be provided.
The second basis upon which the documents were said to be discoverable was that they were relevant to foreseeability. The foreseeability of harm has been put in issue by paragraph 16 of the claim and paragraph 14 of the defence. The plaintiff submitted that the expert reports referred to in the transcript which predated the treatment of the plaintiff would be relevant to the issue of whether or not harm arising from misdiagnosis and prescription of dexamphetamine was foreseeable. This submission is obviously very much dependent upon the content of the expert reports referred to. If those reports related to the risk of injury arising out of misdiagnosis of ADD and prescription of dexamphetamine in circumstances where it was not warranted then in my view the fact that foreseeability of harm has been put in issue would render them discoverable. However at present it is not clear even that the defendants have considered the terms of those documents in order to form a view whether or not they are discoverable in accordance with an accurate statement of the test for discovery.
I will now deal with each of the categories of documents which were the subject of the application.
(a) allegations by the Medical Board of Australia or AHPRA that the first defendant misdiagnosed patients with ADD and/or wrongly prescribed dexamphetamine
While I accept that mere allegations prove nothing, such documents may be discoverable notwithstanding they related to different patients for the reasons that I have outlined above. I have used the word “may” because without further information about the time and circumstances of the complaint it is not possible to form any concluded view. They would need to be assessed individually as part of the discovery process.
(b) proceedings between the Medical Board of Australia and the first defendant: OR 16 of 2011 in ACT Civil and Administrative Tribunal (ACAT)
For the reasons given above documents relating to these proceedings may well be discoverable notwithstanding that they arise out of the treatment of patients other than the plaintiff. The precise scope of documents that may be discoverable will depend upon an assessment of the individual documents.
(c) all peer review reports obtained by the Medical Board of Australia relating to the first defendant including the report of Dr Milch
For the reasons given above such reports may be discoverable depending on their subject matter notwithstanding that they do not relate to the treatment of the plaintiff.
(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
Having regard to the fact that the correctness of the diagnosis, the standard of treatment and the nature of the history taken have all been put in issue, essays, articles or studies in relation to the diagnosis of ADD would, in my view, be discoverable. I do not accept the defendants’ submission that the documents in this category “have no bearing on or relevance to the manner in which Dr Tym treated [the plaintiff’s] condition”.
(e) the first defendant’s ability to practise at the time of the consultations including: (1) his practising certificate; and (2) any documents relating to his compliance with continuing professional development or associated requirements
The plaintiff has alleged and the defendants have admitted that at all material times the first defendant was a registered medical practitioner. No particular submissions were addressed to the relevance of his practising certificate. Unless there were some relevant conditions upon his registration I do not consider the practising certificate to be discoverable. Documents relating to Dr Tym’s compliance with continuing professional development or associated requirements could be discoverable depending on whether they disclosed matters relevant to a fact in issue or a line of enquiry relevant to such a fact. On the material before me it is not possible to say that the defendants have failed to disclose relevant documents.
(f) the first defendant’s decision to withdraw from practice
Documents relating to the first defendant’s decision to withdraw from practice may be discoverable depending on what those reasons were and in what circumstances the decision was made.
Conclusion and Order
As will be apparent from the above I am not satisfied that the defendants have complied with their obligations to provide discovery. The defendants have taken an unduly restrictive approach to the documents or categories of documents which might be discoverable. As a consequence of adopting such an approach the defendants have failed to consider the discoverability of categories of documents which appear to be accepted to be within their control.
I cannot be satisfied however that all of the documents in each of the categories identified in the plaintiff’s application are discoverable and should be the subject of a further order. In the circumstances I am satisfied that the defendants need to undertake again the exercise of determining what documents are discoverable in a manner consistent with their obligations as explained in these reasons.
In reaching this conclusion I have taken into account the considerations in r 606(3) of the Rules and the submissions of the defendants in relation to the burden imposed upon the defendants by an order for further discovery. In my view the evidence does not establish that this further order would in any way be oppressive to the defendants or out of proportion to the circumstances of the case.
As a consequence, the order that I will make is:
No later than 25 September 2015 the defendants make further disclosure by filing a further list of documents and supplementary affidavit verifying their list or, in the event that no further list of documents is required, a further affidavit of documents verifying that the defendants have complied with their obligations under the Rules.
[The parties were heard in relation to costs.]
Costs
The conclusions that I have reached are that the defendants have failed to undertake a discovery process consistent with their obligations under the Rules. As a consequence the plaintiff has been forced to bring this application. Although I have not made the orders that the plaintiff has sought, in my view the plaintiff has been substantially successful.
It might be argued by the defendants that costs should be reserved so as to be assessed depending upon whether or not any further documents are in fact found to be discoverable.
However, in my view, because of the conclusion that I have reached, namely that there has been a failure on the defendants’ part to approach the issue of discovery in the required manner, I am satisfied that the plaintiff was entitled to bring the application that he has and that I should make an order now rather than reserving for later consideration the question of costs of the application.
As a consequence, the order that I will make in relation to costs is:
The defendants pay the plaintiff’s costs of the application in proceeding dated 24 July 2015.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 10 September 2015 |
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