Khoury v Kirwan (No 3) - [2021] VSC 304

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2020 01434

ELIE KHOURY	Plaintiff
v
DAVID KIRWAN	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April 2021
DATE OF JUDGMENT:	27 May 2021
CASE MAY BE CITED AS:	Khoury v Kirwan (No 3)
MEDIUM NEUTRAL CITATION:	[2021] VSC 304

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PRACTICE AND PROCEDURE – Subpoena objections – Subpoenas issued to health care providers, doctor and the Medical Council of New South Wales – Whether subsections 99A(2) and 99A(2A) of the Health Care Complaints Act 1993 (NSW) are applicable – Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236 – Burrows v Council for the Law Society of New South Wales [2018] NSWSC 235 – Objections on the basis of subsections 99A(2) and 99A(2A) of the Health Care Complaints Act 1993 (NSW) are disallowed – Whether subsections 28(2) and (3) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) are applicable – National Mutual Life Association of Australia Ltd v Godrich (1910) 10 CLR 1 – Tikiri Pty Ltd v Fung (2016) 50 VR 786 – Medical Board of Australia v Kemp (2018) 56 VR 51 – Objections on the basis of subsections 28(2) and (3) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) are disallowed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G L Schoff QC with Ms H Jager	Litton Legal
For the Defendant	Mr E Batrouney	Kennedys
For a Non-Party	Mr I Chatterjee	Health Care Complaints Commission

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Background......................................................................................................................................... 1

Material filed...................................................................................................................................... 2

Is s 99A of the Health Care Complaints Act 1993 (NSW) applicable?...................................... 2

Submissions of the Health Care Complaints Commission..................................................... 3
Submissions of Dr Khoury........................................................................................................... 5
Submissions of Dr Kirwan........................................................................................................... 6
Applicable principles.................................................................................................................... 6
Do sub-ss 99A(2) and 99A(2A) operate as bars on the validity of a subpoena?................ 10
Can the Commission rely upon sub-ss 99A(2) or 99A(2A) although the documents have been produced?........................................................................................................................... 11
Does sub-s 99A(2A) of the HCC Act apply to subpoenas issued prior to its operation and returnable afterwards?...................................................................................................... 12
Can the Commission rely upon sub-s 99A(2A) although the subpoena is addressed not to it but the Medical Council (with whom it shares information)?........................................... 13
Can the Commission rely upon sub-s 99A(2) in response to a subpoena directed to the Medical Council?.............................................................................................................................. 15
Do sub-ss 99A(2) or 99A(2A) apply in respect of a subpoena addressed to AHPRA?..... 15

Are sub-ss 28(2) and (3) of the Evidence (Miscellaneous Provision) Act 1958 (Vic) applicable? 16

Submissions of Dr Khoury......................................................................................................... 18
Submissions of Dr Kirwan......................................................................................................... 19
Applicable principles.................................................................................................................. 20
Does sub-s 28(2) of the EMP Act apply to patients treated interstate?............................... 21
Do the consents provided by one patient and the relatives of two deceased patients by email to Dr Kirwan’s solicitor constitute consent within the meaning of sub‑ss 28(2) and (3)?..... 23
Does sub-s 28(2) of the EMP Act apply to records produced by regulatory bodies such as the Commission and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 304
Decision Date: 27 May 2021

CaseChat Overview and Summary

Khoury v Kirwan (No 3) involved objections to subpoenas issued to various health care providers, including a doctor and the Medical Council of New South Wales, in a case where the appellant sought to have the subpoenas quashed. The dispute was heard in the Supreme Court of Victoria. The main legal issues before the court were whether the subpoenas were validly issued under the Health Care Complaints Act 1993 (NSW) and the Evidence (Miscellaneous Provisions) Act 1958 (Vic).

The court first considered the applicability of subsections 99A(2) and 99A(2A) of the Health Care Complaints Act 1993 (NSW), which pertain to the disclosure of confidential information. The court found that the principles established in Council of the New South Wales Bar Association v Archer and Burrows v Council for the Law Society of New South Wales, which held that objections on the basis of these subsections were not sufficient to disallow the subpoenas, were applicable. Consequently, the objections on the basis of these subsections were disallowed.

The court then turned to the applicability of subsections 28(2) and (3) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic), which relate to the disclosure of confidential information in evidence proceedings. The court held that the objections based on these subsections were also not sufficient to disallow the subpoenas, following the reasoning in National Mutual Life Association of Australia Ltd v Godrich, Tikiri Pty Ltd v Fung, and Medical Board of Australia v Kemp. As a result, the objections on the basis of these subsections were also disallowed.

In conclusion, the court dismissed the objections to the subpoenas issued to the health care providers, doctor, and the Medical Council of New South Wales.

Orders