Ibrahim v Dias
[2024] WASC 336
•10 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: IBRAHIM -v- DIAS [2024] WASC 336
CORAM: TOTTLE ACJ
HEARD: ON THE PAPERS
DELIVERED : 10 SEPTEMBER 2024
FILE NO/S: CIV 2042 of 2022
BETWEEN: JOSEPH IBRAHIM FARAHAT IBRAHIM
Plaintiff
AND
PETER DIAS
Defendant
Catchwords:
Practice and procedure - Subpoenas - Non-party costs - Application for costs of compliance with subpoena - Whether costs reasonably incurred in the course of compliance with subpoena
Legislation:
Health Services (Quality Improvement) Act 1994 (WA)
Result:
Orders made requiring the plaintiff to pay the non-party's reasonable costs reasonably incurred in compliance with the subpoena
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Rebus Legal |
| Defendant | : | Steedman Stagg Lawyers |
Case(s) referred to in decision(s):
Nil
TOTTLE ACJ:
Introduction
These reasons concern an application by Healthscope Operations Pty Ltd, a recipient of a subpoena issued by the court for costs incurred in complying with the subpoena. Healthscope seeks to recover internal costs of $2,135.86, external 'IT costs' of $2,160 and legal costs of $31,960. The quantum of the claim for legal costs is the only controversial aspect of the application. The plaintiff maintains the legal costs claimed by Healthscope were not incurred in the course of complying with the subpoena and to the extent to which they were, they are unreasonable in amount. The plaintiff contends that I should not fix the costs (as I had foreshadowed I would) but the quantum should be assessed and determined by a registrar.
Healthscope has supported its application with written submissions and affidavit evidence. The plaintiff has filed and served comprehensive written submissions in support of his position.
Background
On 2 October 2023 a subpoena was issued at the plaintiff's request directed to the Mount Hospital, Perth requiring the production of five categories of documents created between 1 October 2021 and 14 November 2021.
A trial of a preliminary question, in effect, whether the matters complained of by the plaintiff were published, was listed to take place on 16 and 17 November 2023.
The central purpose of the subpoena was to obtain production of documents that were relevant to the issue of whether the defendant had published a document entitled 'Mandatory Notification Statement' to Dr Gregory McGrath, the Medical Director of the Mount Hospital and the Chair of the hospital's Clinical Review Committee. The existence or otherwise of a communication from the defendant to Dr McGrath sending him the Mandatory Notification Statement was of critical importance to the plaintiff's case.
The Mount Hospital is operated by Healthscope Operations Pty Ltd.
The last day for service of the subpoena was 4 October 2023 but it was not served until 17 October 2023. The return date was 25 October 2023. Healthscope informed the plaintiff's solicitors that it would require 30 days to respond to the subpoena. The plaintiff's solicitors did not object to Healthscope writing to the court and seeking a variation in the date for production of documents until 16 November 2023 even though that was the first day of the trial. This was an extraordinary step for the plaintiff's solicitors to have taken because a delay in return of the subpoena until the morning of the trial would have most certainly resulted in a late application by the plaintiff for an adjournment of the trial.
At a directions hearing held on 1 November 2023 (convened by the court because of a concern that there had been non-compliance with various procedural directions which had the potential to jeopardise the hearing dates of 15 and 16 November 2023) I expressed concern about the extension of time sought by Healthscope for answering the subpoena and asked the plaintiff's solicitor to give notice that Healthscope should attend the directions hearing listed to take place on 7 November 2023 so that the question of whether Healthscope could respond to the subpoena in a manner that would enable the trial of the preliminary question to be determined without an adjournment of the hearing could be addressed.
On 6 November 2023 Healthscope's Clinical and Liability Claims Manager, Ms Alice Robinson, sent a letter to the court explaining Healthscope's position and raising for the court's consideration the application of the Health Services (Quality Improvement) Act 1994 (WA) (the Act). Section 10 of the Act creates a statutory privilege in respect of documents created by or at the request of or solely for the purpose of a Clinical Review Committee's functions. Relevantly, the effect of the privilege is twofold: first, a person who acquires information solely as a result of a Clinical Review Committee performing its functions is neither competent nor compellable in civil proceedings to divulge or communicate that information to any court, and secondly, a document created by or at the request of a committee or created solely for the performance of a committee's functions is not 'subject to discovery' and is not to be used in evidence unless there is compliance with certain conditions. There was no suggestion that the applicable conditions had been complied with in this case. Healthscope's letter of 6 November 2023 was helpful to the court and, in the circumstances I have described, it was a step taken in compliance with the subpoena.
At the hearing on 7 November 2023 Healthscope was represented by counsel. Such representation was appropriate for two reasons, first, because in the unusual circumstances of this case, the court had required Healthscope's attendance and secondly, because Healthscope raised an important and novel point about the potential operation of the statutory privilege created by the Act. Neither I nor the parties were aware of existence of the provisions of the Act that created the privilege. I explained to Healthscope's counsel that although the subpoena was drafted in wide terms the plaintiff's focus was on whether Healthscope had in its possession any communication from the defendant to Dr McGrath by which the former provided the latter with the Mandatory Notification Statement. I enquired of Healthscope's counsel whether a targeted search for communications of the nature sought by the plaintiff could be conducted in response to the subpoena and for any documents to be provided to the court in advance of the trial itself. The upshot was that Healthscope, through its counsel, agreed to undertake the targeted search and inform the court of the result of that search. The issue of the return of the subpoena was adjourned to 13 November 2023.
By the time of the directions hearing on 13 November 2023 Healthscope provided the parties with a letter dated 9 November 2023 in which, in summary, it stated that it did not have in its possession any documents constituting communications by which the Mandatory Notification Statement was provided to Dr McGrath. The plaintiff's senior counsel did not accept that the letter from Healthscope was an adequate response to the subpoena and contended that he was entitled to interrogate the responsible officer about the inquiries made by Healthscope to answer the subpoena. The plaintiff's solicitors had not raised their concerns in relation to the adequacy of Healthscope's inquiries before the hearing on 13 November 2023. Healthscope's counsel agreed to serve an affidavit to be sworn by the author of the letter dated 9 November 2023 deposing as to the inquiries made by her to answer the subpoena.
Ms Alice Robinson of Healthscope swore an affidavit verifying, in effect, the content of the letter dated 9 November 2023. On 15 November 2023, Ms Robinson, who was based in Melbourne, appeared by audio-visual link and explained to the court the steps that had been taken to respond to the subpoena. The explanation was provided in response to questions from me but my questions addressed the concerns that had been raised by the plaintiff's senior counsel.
Disposition
I am satisfied of the following matters:
(a)The preparation of Healthscope's letter to the court dated 6 November 2023 was a step taken by Healthscope for the purpose of complying with the subpoena.
(b)Given that the court requested Healthscope's attendance at the hearing on 7 November 2023 and that the purposes of the letter included informing the court and the parties of the relevant provisions of the Act and the inquiries undertaken by Healthscope to answer the subpoena in advance of the hearing on 7 November 2023, I am satisfied that it was reasonable for Healthscope to obtain legal advice and assistance in preparing the letter of 6 November 2023.
(c)It was reasonable for Healthscope to brief counsel to appear on its behalf at the hearing on 7 November 2023.
(d)The preparation of Healthscope's letter to the court of 9 November 2023 was a step taken by it for the purpose of complying with the subpoena and that it was reasonable for Healthscope to obtain legal advice and assistance in preparing the letter.
(e)Healthscope's attendance before the court on 13 November 2023 was a necessary step in the process of answering the subpoena.
(f)It was appropriate for Healthscope to brief counsel to appear on its behalf at the hearing on 13 November 2023.
(g)I am satisfied that the preparation of Ms Robinson's affidavit of 14 November 2023 was a step taken by Healthscope for the purpose of complying with the subpoena and that it was reasonable for Healthscope to obtain legal advice and assistance for the purposes of preparing the affidavit.
(h)I am satisfied that it was appropriate for Healthscope to brief counsel to appear on its behalf at the hearing on 15 November 2023.
(i)Healthscope's internal costs and its external IT costs were incurred in complying with the subpoena and are reasonable.
I had hoped that the further costs associated with an assessment of costs could be avoided and that I would fix the costs. The nature and extent of the controversy is such that it is preferable, though very regrettable, that the quantum of costs be determined by a registrar of the court.
I will make the following orders:
(1)The plaintiff is to pay the costs of Healthscope Operations Pty Ltd in complying with the subpoena issued on 2 October 2023 characterised as its internal costs and external IT costs in the aggregate sum of $4,295.86, such sum to be paid forthwith.
(2)The plaintiff is to pay the legal costs incurred by Healthscope Operations Pty Ltd in relation to its compliance with the subpoena issued on 2 October 2023 save in so far as such costs were unreasonably incurred or are of an unreasonable amount.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CD
Associate to the Honourable Justice Tottle
10 SEPTEMBER 2024
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