Lee v Smith

[2005] FMCA 1013

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v SMITH & ORS [2005] FMCA 1013

HUMAN RIGHTS – Sex discrimination – declaration for non–party production pursuant to s.45(1) Federal Magistrates Act 1999 set aside.

Federal Magistrates Act 1999, s.45(1)

Applicant: CASSANDRA LEKEI LEE

1^st Respondent: AUSTIN SMITH

2^nd Respondent: RODERICK HOMER

3^rd Respondent: BERNARD L DONCHI

4^th Respondent: COMMONWEALTH OF AUSTRALIA

File Number: BRG204 of 2004

Judgment of: Coker FM

Hearing date: 7 June 2005

Delivered at: Cairns

Delivered on: 7 June 2005

REPRESENTATION

Solicitor for the Applicant: Wettenhall Silva

Solicitor for the 1^st Respondent: Carew Lawyers

Solicitor for the 2^nd 3^rd and 4^th Respondents: Blake Dawson Waldron

ORDERS

1. That the Order made on 4 May 2005 relating to the discovery of all medical records, prescriptions, medical certificates, invoices, medical reports, diary records, appointment records, correspondence, Medicare records and any other documentation in the possession or control of Dr Trott including records of Paul Trott Pty Ltd be set aside.

2. That there be no future report able to be relied upon from Dr Trott without leave first granted by the Court.

3. That the costs of all parties be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CAIRNS

BRG204 of 2004

CASSANDRA LEKEI LEE

Applicant

And

AUSTIN SMITH,  RODERICK HOMER,  BERNARD L DONCHI and COMMONWEALTH OF AUSTRALIA

Respondents

REASONS FOR JUDGMENT

1. On 4 May 2005, I made orders pursuant to section 45(1) of the Federal Magistrates Act 1999 which were to the effect that the Court made a declaration that non-party discovery was appropriate, in the interests of the administration of justice.

2. Pursuant to that declaration, I then made orders under order 15A, rule 8 of the Federal Court Rules, to the effect that Dr Paul Trott, as well as a considerable number of other medical practitioners and associated medical persons, provide to the Court information, including medical records, prescriptions, medical certificates, invoices, medical reports, diary records, appointment records, correspondence, Medicare records and any other documentation in their possession or control relating to medical appointments the applicant had had with those various medical professionals.

3. Dr Trott almost immediately made contact with the Court, but also with the legal representatives for the respondents and the legal representatives for the applicant, Ms Lee.  In a letter of 5 May 2004, Dr Trott, in writing to Blake Dawson Waldron Lawyers, legal representatives for the 2nd, 3rd and 4th respondents, said:

   In reference to your letter dated 21 April 2005 regarding the Notice of Motion in the Court asking the Court to order that I disclose documents and then the particulars of them, I would like to object to the production of the documents as requested.

4. Dr Trott then goes on to refer to the concerns that he has in respect of the effect upon Ms Lee, his patient, should he comply as he is, of course, lawfully required to do with those directions.

5. He goes on a little later in his letter to say:

   Ms Lee has been engaged in interpersonal psychotherapy for treatment of her chronic depressive illness.  The release of documents, especially those pertaining to the various clinical sessions would seriously disrupt and jeopardise her psychotherapy and compromise her treatment as well as there being a likely detrimental effect upon her mental health, including a worsening of her depression and possible suicide risk.  There is also the significant risk of damage to the doctor/patient relationship, including Ms Lee disengaging from treatment at this clinic as a consequence of confidential material being released to a third party with she construing that there has been a breach of trust.  Additionally, Ms Lee may find it difficult to seek help with another mental health practitioner.

6. As a result of that correspondence, an application was made on the part of Ms Lee by her legal representatives, which is the Notice of Motion now returnable before me.  That Notice of Motion seeks an order in these terms: 

   That the order made by this Court on 4 May 2005 be set aside and/or varied pursuant to rule 16.05 and/or rule 16.01 of the Federal Magistrates Court Rules.

   The Notice of Motion then goes on to detail the orders, such that there should be a preclusion on the provision of the information contained within the records and notations of Dr Trott.

7. It is, in my view, an enormously difficult matter.  There are obvious consequences for the respondents in relation to the non-production of information, particularly, when there are very serious allegations raised by the applicant in relation to the conduct, that is said to be both discriminatory and to in fact include a sexual assault, upon Ms Lee.

8. Just as, clearly, however, Dr Trott raises squarely the very serious consequences for Ms Lee if there is the provision of such information, particularly from him, as her current treating psychiatrist and the possible breakdown of the therapeutic relationship between Ms Lee and Dr Trott.

9. There are, as I say, a multitude of concerns.  I am mindful of the fact that there must be the opportunity given for the respondents to fully appraise themselves of all evidence in relation to proceedings and to have the opportunity of fully raising every possible defence.  Balanced against that of course is the fact that there needs to be direct consideration of the benefit in relation to the provision of information and that assessment includes a balancing of both the positives and the negatives, in relation to the applicant's case and the respondent's case.

10. I have not dealt with a situation before where a situation of third party discovery has been the subject of a further application.  In this matter, it is very clear that Dr Trott has taken a very positive stance in relation to the wellbeing of his client.  He raises very serious concerns in respect of the effects upon Ms Lee of the breakdown of that alliance, as he refers to it, between he, as the medical practitioner and she, as the patient.

11. There is a possibility and it is a matter of concern that there may be a prejudice to the position of the respondents.  But in this matter I have come to the decision that the far greater risk is not the prejudice to the position of the respondents, but to the health and wellbeing of the applicant, as a whole.

12. For that reason I intend to make an order setting aside the order made on 4 May 2005, relating to the discovery and/or production of the records, prescriptions, medical certificates, invoices, medical reports, diary records, appointment records, correspondence, Medicare records and any other documentation in the possession or control of Dr Trott, including the records of Paul Trott Medical Pty Ltd. 

13. I will also go on, as was suggested, to direct that there be no future report able to be relied upon from Dr Trott, without leave first granted by the Court.  It seems to me that is not necessarily the perfect solution, but it is the best that can be provided, to ensure that there is some stability provided for the applicant in relation to her continuing medical treatment and at the same time to provide some certainty in relation to the respondent's position in respect of the matter.

    RECORDED   :   NOT TRANSCRIBED

    ORDERS DELIVERED

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate: 

Date: 20 July 2005