Jones v Phelps and Tobin

[2011] VCC 140

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

MEDICAL DIVISION

Case No. CI-03-07747

DESMOND JONES	Plaintiff
v
GRANT PHELPS	First Defendant
and
STEPHEN TOBIN	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2011
DATE OF JUDGMENT:	11 February 2011
CASE MAY BE CITED AS:	Jones v Phelps and Tobin
MEDIUM NEUTRAL CITATION:	[2011] VCC 140

REASONS FOR JUDGMENT

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Catchwords: Return of order 42 subpoena compelling production of documents – Objection to inspection of documents.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance	-
For the Defendants	Mr Robert Harper	John Ball & Sons
HIS HONOUR:

1          In this proceeding:

(i)	The plaintiff seeks damages against the defendants, who are both medical practitioners, in respect of injury and loss allegedly suffered by him by reason of the negligence by the defendants in providing medical treatment and services to him.
(ii)	The defendants deny negligence, and further raise a defence that the medical treatment administered by the defendants to the plaintiff was administered by reason of an injury to the plaintiff which arose out of or in the course of the plaintiff’s employment with the National Australia Bank.

2 In these circumstances, it is asserted by the defendants that the plaintiff is barred by reason of the operation of the provisions of s.135AC of the Accident Compensation Act 1985 (as amended) (“the Act”) from bringing these proceedings by reason of the plaintiff’s failure to comply with the provisions of s.1354AB of the Act.

3 In this application, the defendants seek access to documents produced by the National Australia Bank in response to a subpoena served upon the Bank by the defendants pursuant to the provisions of Order 42 of the County Court Civil Procedure Rules 2008. This subpoena required the Bank to produce:

• Complete personnel/employment file relating to the plaintiff, Mr Desmond Jones (D.O.B. 08.03.1953), of Havenstock Drive, Yarrawonga (formerly of 8 Douglas Avenue, Swan Hill).

• Complete compensation file in respect of the plaintiff’s claim for WorkCover payments.

4          In response to the subpoena the bank delivered to the court one file containing numerous papers. The file however did not identify into which of the above two categories documents the various papers fell.

5          The plaintiff, who is unrepresented in this proceeding, in an undated letter received by the Court on 9 December 2010; objects to the production of the documents the subject of the subpoena (“the documents”) on the basis of “privilege, immunity and confidentiality to the documents or the thing the subject of the subpoena”.

6          Notwithstanding the failure by the plaintiff to appear at the application which proceeded on 9 February 2011, for the purpose of determining whether the defendants should have access to the documents the subject of the subpoena, the matter was conducted by me in the form of an opposed application.

7          It is put on behalf of the defendants that the documents which the National Australia Bank Limited is required to produce by reason of the subpoena are likely to be relevant, for the purpose of:

• Establishing one or more proofs in what it contends is a complete defence to the proceeding, namely that the plaintiff is barred by reason of the operation of the provisions of s.135AC of the Accident Compensation Act 1985 from maintaining the proceeding;

• Mounting its defence in respect of the quantum of the plaintiff’s claim.

8          It is submitted that the documents are likely to contain information relevant to the defendants’ defence of the proceedings either in the form of:

(i)	Admissions made by the plaintiff against his interest or;
(ii)	Assessments by various medical practitioners who have examined the plaintiff and who have opined as to the nature of his current condition and its cause or causes or;
(iii)	Information as to the plaintiff’s history of employment which is relevant to any claim by the plaintiff for damages with respect to loss of earnings or earning capacity.

9          Insofar as any obligation of disclosure which arises by reason of the subpoena is governed by the provisions of s.131A of the Uniform Evidence Act 2008, I am required by reason of the Act to apply the provisions of PART 3.10 when considering the defendants’ application. In doing so, I have the power, pursuant to s.133 of the Act, to inspect the documents the subject of the defendants’ subpoena for the purpose of determining whether the production of the documents would contravene any privilege to which the plaintiff is entitled under the Act.

10 PART 3.10 of the Evidence Act 2008 establishes six privileges:

(i)	legal professional privilege;
(ii)	privilege in respect of a religious confession;
(iii)	the privilege against self-incrimination;
(iv)	the privilege in respect of the evidence of reasons for judicial decisions;
(v)	privilege on the grounds of public interest immunity;
(vi)	privilege in respect to evidence of settlement negotiations.

11 In addition to these privileges, the privilege established by s.28(2) of the Evidence Act (Miscellaneous Provisions) 1958, which relates to the disclosure of information acquired by a physician or surgeon in the course of attending to a patient, remains extant.

12        Having regard to the fact that the documents sought are those contained within the file of the National Australia Bank (the plaintiff’s employer at the time of the alleged acts of negligence by the defendants), it is not easy to readily identify the nature of the privilege which is relied upon by the plaintiff in opposing the application by the defendants to documents the subject of the subpoena.

13        I am satisfied that the file is likely to contain documents which are relevant to the defence by the defendants of this proceeding both in reference to:

• the reason for the plaintiff’s cessation of his employment with the Bank;

• the relationship, if any, between the claim made by plaintiff under the provisions of the Act in respect of injuries occasioned in the course of his employment with the Bank and the medical treatment administered by the defendants.

14        Whilst the documents may include some material which, in some circumstances, could attract medical privilege the fact:

(i)	that the documents form part of a file maintained by the plaintiff’s employer; and
(ii)	that in the course of this proceeding (and during the period in which the plaintiff was represented by solicitors), the plaintiff has provided the defendants access to:
•	taxation returns setting out his earnings as an employee of the Bank;
•	medical certificates describing his incapacity for work by reason of the presence of depression and ulcerative colitis;
•	the findings of a Medical Panel which was called upon to determine whether the plaintiff’s ulcerative colitis was caused or contributed to by his employment,

it is likely that any argument which may have been available to the plaintiff that the file contains material which attracted medical privilege, is no longer available as any such privilege which may have existed in this regard has been waived.[1]

[1]             See Elliott v Tippett & Anor [2008] VSC 175 (28 May 2008)

15        Having regard to the fact that the plaintiff is unrepresented however, I considered it appropriate that I should exercise the power conferred by reason of s.133 of the Act to inspect the documents before I made a ruling with respect to this application.

16          Having inspected the documents, I am of the opinion that:

(i)	whilst the file contains a number of medical reports, any privilege which may have existed in relation to those reports has been waived for the reasons to which I have earlier referred;
(ii)	a number of documents within the file are privileged pursuant to s.131 of the Act, in that they comprise documents generated in the course of settlement negotiations.

17        The issue therefore arises as to whether the presence of privileged documents within the file should have the effect of denying the defendants access to the content of the file generally or only to the documents which attract the relevant privilege.

18        I will give the opportunity to the parties to address me on this issue at a time convenient to them.

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