McKenzie v Kitchen

[2008] WADC 47

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   McKENZIE & ANOR -v- KITCHEN & ANOR [2008] WADC 47

CORAM:   REGISTRAR KINGSLEY

HEARD:   18 DECEMBER 2007

DELIVERED          :   3 APRIL 2008

FILE NO/S:   CIV 1480 of 2006

BETWEEN:   AMANDA MAY McKENZIE

First Plaintiff

ANDREW McKENZIE
Second Plaintiff

AND

JAMES THEODORE KITCHEN
First Defendant

CRYSTAL CREE
Second Defendant

Catchwords:

Practice - Application for specific discovery - Claim of privilege

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

First Plaintiff                :     Mr N P Dobree

Second Plaintiff            :     Mr N P Dobree

First Defendant             :     No appearance

Second Defendant         :     No appearance

Medical Board (by leave):    Ms S Brook

Solicitors:

First Plaintiff                :     N Dobree

Second Plaintiff            :     N Dobree

First Defendant             :     Minter Ellison

Second Defendant         :     Minter Ellison

Medical Board (by leave):    Tottle Partners

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

Complete Technology Pty Ltd v Toshiba (Aust) Pty Ltd (1994) 53 FCR 125

Harman v Home Department State Secretary [1983] 1 AC 280

Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 3 All ER 878

Re Environmental Images Pty Ltd v Australian Trade Commission (1996) 23 AAR 439

Re P J Beaconsfield Gold NL and Australian Securities Commission (1997) 47 ALD 167

1. REGISTRAR KINGSLEY:  The plaintiff has brought an application seeking orders that the defendant make specific discovery and inspection, of;

   (a)Reports of Dr Darcy P Smith of 15 October 2003 and 19 March 2004.

   (b) The documents supplied to Dr Kirk and summarised in his report of 8 December 2003 comprising Items 1, 4, 5, 7 and 8.

The pleadings and history

1. The plaintiffs plead that the defendants were negligent in failing to diagnose, or take appropriate investigatory steps to diagnose, the first plaintiff's appendicitis.  As a result of the alleged negligence the plaintiffs particularise the alleged injury and loss.

2. The Medical Board is conducting an investigation into the first defendant's conduct in the matter.  In a report by a Dr Kirk dated 8 December 2003, Dr Kirk, in the second paragraph of his letter states that he has perused documents supplied to him by the defendants' solicitors.  For the purposes of this hearing the relevant documents are:

   (1)Notice of enquiry

   (2)A report by an anonymous doctor expressing an opinion of Mrs McKenzie's treatment

   (3)Dr Kitchen's practice records

   (4)Further statement by Mrs McKenzie

   (5)Opinion of Dr Darcy Smith

3. The plaintiffs' solicitors requested disclosure of the documents in March 2007.  By letter dated 3 May 2007 the defendants declined to provide the documents to the plaintiffs' solicitors on the basis that the defendants' solicitors had received the documents solely for the purposes of Medical Board proceedings.  Subsequently on 16 May 2007 the solicitors for the Medical Board, Tottle Partners, wrote to the defendants' solicitors confirming that there was an implied undertaking of confidentiality to the Medical Board not to disclose the disputed documents to the plaintiffs' solicitors in the current common law proceedings.  The Medical Board declined to give its authority to the first defendant to disclose the document.  The defendants' solicitors contend that they are bound by the implied undertaking not to release the documents unless the undertaking is modified or the defendants' solicitors are released. 

The implied undertaking

1. In Harman v Home Department State Secretary [1983] 1 AC 280 the House of Lords confirmed that documents obtained by discovery are subject to an implied undertaking which prevents the use for any purpose other than the proper conduct of the action in which the documents were obtained, expect with leave of the court (the Harman rule). That proposition has been accepted in Australian jurisdictions, for example, see Complete Technology Pty Ltd v Toshiba (Aust) Pty Ltd (1994) 53 FCR 125. The implied undertaking originated as a form of protection against the misuse of documents obtained during the discovery process and now extends to a wide range of materials. In a helpful article "The implied undertaking restricting the use of material obtained during legal proceedings" by Matthew Groves (2003) 23 ABR 314, Groves suggests that the range of documents to which the implied undertaking has been applied suggests that there is now a general rule that material provided or obtained by compulsory means during legal proceedings is prima facie subject to the implied undertaking. 

2. In administrative proceedings, where documentation is produced under compulsion before a tribunal, the Harman rule applies and parties are precluded from using the material obtained for a collateral purpose (ReEnvironmental Images Pty Ltdv Australian Trade Commission (1996) 23 AAR 439. In Re P J Beaconsfield Gold NL and Australian Securities Commission (1997) 47 ALD 167, Sundberg J stated that it is the production under compulsion that gives rise to the undertaking. A review of the authorities suggests that a non‑judicial body that has the power to demand that a party to a proceeding before it should file or exchange material for the purposes of the proceeding before the tribunal gives rise the implied undertaking as to collateral use. The tribunal also has an implied power to determine an application for release from the undertaking that attaches to material provided in accordance with that power of compulsion.

3. In PrudentialAssurance Co Ltd v Fountain Page Ltd [1991] 3 All ER 878, Hophouse J stated that the implied undertaking is in reality a legal obligation that arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information. Hophouse J commented at 885:

   "However, treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is simply owed to the parties; likewise, it is an obligation which the court has the right to control and can modify or release a party from".

4. Hill J in Complete Technology Pty Ltd v Toshiba (supra) after stating that comment by Hophouse J went on to say:

   "The case makes clear that since the duty is owed to the court an injunction would issue to restrain a breach of the duty, which breach would constitute a contempt of court".

The Professional Standards Committee and the Medical Board

1. The Medical Board is an independent statutory authority established pursuant to s 4 of the Medical Act (1894).  The Public Standards Committee (PSC) is established pursuant to s 8AA of the Act.  Prior to January 2005 all disciplinary enquires were heard by the Medical Board.  The Medical Board enquires were instigated by way of notice of enquiry and it would appear that in this particular case a Notice of Enquiry dated 8 December 2003 is the Notice that instigated the Board's disciplinary proceedings against the first defendant.

2. In January 2005 the Medical Act was amended so that disciplinary proceedings were no longer heard by the Board in enquiry but by one of either:

   (a)The State Administrative Tribunal, or

   (b)The PSC.

3. Section 8AA provides that each member of the PSC is to be a natural person chosen by the Board and the Board appoints one of the members of the PSC to preside at the meetings of the PSC.  The PSC is to comply with any direction that the Board gives about the conduct of its proceedings but otherwise is to determine its own procedures (s 8AA(4)).  The PSC is to ensure that accurate records made at the proceedings at its meetings including details of each decisions it makes and those records are retained (s 8AA(5)). 

4. By s 13(2a) the Medical Board, where it is of the opinion that the nature of a matter might not warrant a proceeding before the State Administrative Tribunal, may send the matter, and any material or report relating to the matter, to the PSC.  By s 8AA(5) the PSC can give the medical practitioner the option of having the matter dealt with before the State Administrative Tribunal and is to give the medical practitioner an opportunity to make submissions about the matter.  The PSC can then make an order to reprimand the medical practitioner, that the medical practitioner pay to the Board a fine of an amount not exceeding $5,000, may impose restrictions or conditions or both on the practice of the medicine by the medical practitioner or a combination of those orders.  By s 8AA(6)(a) the Medical Board has to act according any advice that the PSC give the Board under subs 5, and has to give effect to an order that the PSC makes under subs 6. 

5. Pursuant to s 9(2) of Medical Act every summons issued by the Medical Board requiring the attendance of any person or any production of any documents, and signed by the Registrar, shall have the same effect as a subpoena ad test or duces tecum, issued by the Supreme Court in a civil action; and the obedience or non‑observance shall be enforced and punished by a Judge in chambers in the same manner as in the case of the disobedience or non‑observance of a subpoena issued by the Supreme Court.  Whilst the Medical Board does not have all the attributes of a tribunal as described by Deputy President McDonald in Re PJ Beaconsfield Gold NL AND Australian Securities Commission (supra) at [10] the tribunal does have power to issue subpoenas requiring people to give evidence or produce books, documents or things in their possession, custody and (s 9(2)).  It is that element of compulsion which, in my opinion, brings into play the Harman rule.  Where there is the element of compulsion then the implied undertaking arises.

6. As I understand it the plaintiffs seek access to the documents in their character as subpoenaed documents as distinguished from the same documents in their character as documents admitted into evidence.  This appears to be the case as there have been no hearings before the Medical Board or the PSC.

Conclusion

1. In my opinion the character of the documents delivered to Minter Ellison are documents that have been subpoenaed and brought before the Medical Board by compulsion.  They are therefore subject to the implied undertaking as to collateral use.  Having regard to the functions of the Medical Board, parties should be able approach the Board without concern that the material presented to the Board may be used in other proceedings.  To be otherwise may lead the process of the Board to be misused as an information gathering exercise to achieve a purpose which could not otherwise have been achieved.  For these reasons I am of the opinion that the documents sought by the plaintiff are subject to the implied undertaking and that the plaintiffs' application in that regard is dismissed.  I will hear counsel on the issue of costs.