Mazzoni v Sorrento Family Practice Pty Ltd [No 2]

[2022] WADC 20

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   MAZZONI -v- SORRENTO FAMILY PRACTICE PTY LTD [No 2] [2022] WADC 20

CORAM:   REGISTRAR KINGSLEY

HEARD:   9 SEPTEMBER 2021

DELIVERED          :   28 FEBRUARY 2022

FILE NO/S:   CIV 1079 of 2015

BETWEEN:   PHILIPPA MARY MAZZONI

Plaintiff

AND

SORRENTO FAMILY PRACTICE PTY LTD

First Defendant

EDWARD SAMIR BEBAWAY SOLOMAN

Second Defendant

EIHAB KAMIL BOULOS

Third Defendant

OSAMA MORIS TAKLA ESTEFANOUS

Fourth Defendant

Catchwords:

Practice - Application for specific discovery - Leave required - No leave sought

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr P M Poliwka
First Defendant	:	Mr H M Reynoldson
Second Defendant	:	Mr H M Reynoldson
Third Defendant	:	Mr H M Reynoldson
Fourth Defendant	:	Mr H M Reynoldson

Solicitors:

Plaintiff	:	Poliwka Legal
First Defendant	:	Hotchkin Hanly Lawyers
Second Defendant	:	Hotchkin Hanly Lawyers
Third Defendant	:	Hotchkin Hanly Lawyers
Fourth Defendant	:	Hotchkin Hanly Lawyers

Case(s) referred to in decision(s):

Mazzoni v Sorrento Family Practice Pty Ltd [2021] WADC 12

REGISTRAR KINGSLEY:

1. By her chamber summons dated 19 July 2021, the plaintiff seeks orders:

   1.The time for the Plaintiff to file expert evidence … be extended … to 5 August 2021.

   2.The Defendants discover and allow inspection (in their native electronic format) of all billing records in respect of the patients identified in the following paragraphs of the defendants' affidavit of discovery dated 24 October 2017:

   a.Paragraph 5 - any of the said 404 patients who were treated by the Defendants or their employees at any time after 31 January 2013; and

   b.Paragraphs 6(a) to (c) inclusive - those patients who are said to have had a pre-existing relationship with one of the Defendants' employees where that employee had previously been an employee of the Plaintiff.

   3.The Defendants to discover and allow inspection of any document that demonstrates which patients are said to have been the Defendants' predecessor's patients including but not limited to any practice sale documents.

2. The background to this action has been stated in my reasons in Mazzoni v Sorrento Family Practice Pty Ltd [2021] WADC 12. For the purpose of these reasons the plaintiff pleads that the defendants poached the plaintiff's clients by sending letters to common patients of the plaintiff and defendants and to the plaintiff's exclusive patients (a defined term) advising the plaintiff had left the defendants' medical practice and patients could continue their podiatry service at the medical practice. The plaintiff pleads that some of her exclusive patients went to the defendants' practice (the poached patients).

3. The plaintiff pleads that the second defendant required the plaintiff to migrate all her patient information to the defendants' computer system and that the plaintiff was not granted access to the defendants' billing system (known as Best Practice).  The defendants plead that the plaintiff in March 2012 elected to use the defendants' billing system.

4. At par 39 of the re-amended statement of claim (dated 1 July 2016) the plaintiff pleads that around 14 February 2013 the second, third and fourth defendants sent a letter in respect of patients common to both the plaintiff and defendants and the plaintiff's exclusive patients informing them that those patients could continue to receive their podiatry services from the first defendant's podiatrists which included two employees of the plaintiff who had resigned their employment from the plaintiff one month earlier.  The first defendant denies this allegation.

5. Again, I note that the matter was entered for trial on 17 July 2018.  The Entry for Trial came about as a Notice of Default (Entry for Trial) dated 2 July 2018 had been sent to the plaintiff.  The plaintiff took the step of entering the matter for trial rather than pursue other options.  That has led to the inevitable argument by the defendants that the plaintiff has certified that all matters are in order. 

6. The defendants' counsel submits that the application should be dismissed because the plaintiff has not sought leave to bring the application as required under r 38A(1)(c) of the District Court Rules 2005 (WA).

7. At various times through the course of his submissions, both written and oral, defendants' counsel made the point that the discovery application is being made without leave being sought.  Notwithstanding those submissions, no leave has been sought for the application.

8. The action is complex, and the complexity has not been assisted by the effluxion of time since the cause arose.  In relation to the issue of discovery, as the plaintiff submits, much of the information is held by the defendants.  The plaintiff relies on the defendants to disclose that information.  Further, the issue of discovery is of importance.

9. The action was entered for trial on 17 July 2018.  That was a considered step by the plaintiff in response to the Inactive Case Notice.  Once the matter was entered, rules relating to the need for leave were triggered.  At this point the defendants are entitled to proceed on the basis that any application requiring leave will, within that application, seek an order for leave.

10. Rule 38A(1) of the District Court Rules requires leave to bring the application for discovery.  The rules of court must, prima facie, be obeyed.  The application for leave is a discretionary application, and there must be some material before the court to enable the court to exercise its discretion to grant leave.

11. There is no such material before the court.

12. A close reading of defendants' counsel's written submissions suggests an invitation to the plaintiff's counsel to make an application, in the course of the proceeding, for leave.  Whilst, no doubt, such an application would be opposed, the application would be a vehicle to entertain submissions on the question of leave.  From those submissions sufficient may have emerged for the court to be satisfied that leave be granted.

13. Regrettably the invitation was not taken up.  I am in the position where the defendants' discovery was given in 2017.  Specific discovery is now sought some four years later.  There is no material, either on oath, or from the bar table, to enable me to consider the question of discretion.

14. That being the case, I accede to the defendants' application and the plaintiff's application for specific discovery is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

MB

Associate to Registrar

28 FEBRUARY 2022