Maguire v. Lynch

[2007] QCA 290

SUPREME COURT OF QUEENSLAND

CITATION:

Maguire v Lynch [2007] QCA 290

PARTIES:

JOHN PATRICK MAGUIRE
(plaintiff/appellant)
v
TONI LYNCH
(defendant/respondent)

FILE NO/S:

Appeal No 4425 of 2007
SC No 2476 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2007

JUDGES:

Jerrard and Holmes JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed

CATCHWORDS:

PROFESSIONS AND TRADES – VETERINARY SURGEONS – OTHER MATTERS – where the appellant made an originating application in the Supreme Court seeking an order that the respondent, a veterinary surgeon, hand over to him the records of treatment for his greyhounds – whether the appellant had a legal right of access to the veterinary records

Uniform Civil Procedure Rules 1999 (Qld), r 9, r 10

Breen v Williams (1996) 186 CLR 71, considered

COUNSEL:

The appellant appeared on his own behalf
No appearance for the respondent

SOLICITORS:

The appellant appeared on his own behalf
No appearance for the respondent

1. JERRARD JA:  I agree with the reasons and orders of Holmes JA.

1. HOLMES JA: The appellant made an originating application in the Supreme Court seeking an order that the respondent, a veterinary surgeon, hand over to him her “notes or records of the injuries of” five named greyhounds.  He filed affidavits in support of his application from which it emerges that in August 2006 he took the greyhounds to the respondent’s surgery for treatment.  In November 2006, he says, he asked the respondent for the “list of injuries” she had found in the greyhounds, a request made verbally and in writing. The respondent declined, but did send copies of her records by facsimile to the veterinary practice which the appellant regularly used. She refused permission for the veterinary surgeon there to copy the history provided for the appellant.

1. The learned judge at first instance dismissed the application.  The appellant in his notice of appeal, by way of grounds, sets out a history of events which elaborates on his affidavits.  The only thing resembling an actual ground of appeal is a handwritten addendum to the effect that the learned judge at first instance dismissed the application because “he deemed it was not linked with a Claim”, whereas it was an originating application.

1. The transcript of the hearing at first instance indicates, however, that the primary concern of the learned judge was that the appellant could show no legal basis for the order sought.  He invited the appellant to explain what entitlement he claimed to the records, which were, prima facie the respondent’s property.  The appellant offered nothing beyond the fact that he had asked for them and therefore should have received them; that he regarded the respondent as being in the wrong in not giving them to him.  He was not, he said, intending to sue the respondent, nor had he brought any action against anyone else.

1. In my view, the application was doomed whether looked at from a procedural or a substantive point of view. Rule 9 of the Uniform Civil Procedure Rules 1999 (Qld) requires that proceedings be started by claim unless the Rules permit them to be started by application. Rule 10 permits the starting of a proceeding by application only if:

“(a)    the only or main issue in the proceeding is an issue of law and a substantial dispute of fact is unlikely; or

(b)   there is no opposing party to the proceeding or it is not intended to serve any person with the originating process; or

(c)   there is insufficient time to prepare a claim because of the urgent nature of the relief sought.”

None of those applied in this case.  The respondent clearly disputed the existence of any factual basis for the appellant’s demand for her records: indeed the appellant’s own material does not support one. The respondent was served with the originating process and did not consent to the order.  There was nothing urgent about the nature of relief sought.  Nor was there any litigation on foot which might give rise to a right of disclosure, in connection with which an interlocutory application might have been justified. On no basis could it be said that the proceeding was properly started by application.

1. As to substantive matters, and relevantly to whether there was any point in allowing the proceedings to continue in any form, no basis in law was demonstrated for the making of any order in respect of the respondent’s records. The application is reminiscent of that in Breen v Williams (1996) 186 CLR 71, in which the appellant, Mrs Breen, sought a declaration that she had a right to information in medical records compiled in relation to her by her treating doctor. The High Court held that she had no such right. The doctor’s notes were his property compiled for his own information in treating and advising the patient. The appellant had no proprietary right or interest entitling her to access to them. The agreement between them was to treat the patient with reasonable skill and care; it might have required the provision of information to the appellant but that did not entitle her to access to, and the opportunity to copy, the doctor’s records. The fiduciary relationship between doctor and patient did not carry with it a right of access to records compiled by the doctor.

1. All of those propositions are equally applicable here.  The respondent’s notes are her property; nothing in the material indicates that she agreed for consideration to hand them over; and there is certainly no question of a fiduciary obligation to do so. 

1. The application was rightly dismissed and this appeal should also be dismissed.

1. PHILIPPIDES J:  I have had the advantage of reading the reasons for judgment of Holmes JA.  I agree with the reasons of Her Honour and with the proposed order.