Medical Board of South Australia v Fisher

The Medical Board of South Australia and the South Australian Health Commission were sued by patients infected with Hepatitis C, who were treated by Dr Stephen Rabone at the Barmera District Hospital in 1990 and 1991. The patients sought discovery of documents from the defendants, specifically from the Board regarding the registration of Dr Rabone and any restrictions placed on his ability to practice. The Board resisted the disclosure of documents on grounds of legal professional privilege, public interest immunity, and the potential discouragement of future complaints. The Magistrates Court ordered the documents to be produced for inspection, but the Board appealed this decision. The key issues were whether there was any power before action to order inspection of documents or production for inspection and whether the magistrate erred in the exercise of his discretion in considering whether or not the documents should or should not be produced on account of public interest immunity. The Full Court found that the magistrate had the power to order inspection of documents prior to action under MCR r 72. However, the Court found that the magistrate erred in his exercise of discretion by reducing the balancing exercise to one between the parties, as opposed to a consideration of the public interest. The Court concluded that the public interest in withholding sensitive documents from production, against the need for a court to have all relevant evidence available to it, should have been properly balanced. The Court allowed the appeals, set aside the orders of the Magistrates Court, and ordered that the documents be produced for inspection, subject to certain qualifications.