Merrix and Sloane

[2007] FamCA 544

FAMILY COURT OF AUSTRALIA

MERRIX & SLOANE [2007] FamCA 544

FAMILY LAW - PRACTICE AND PROCEDURE - Set aside Subpoena – Application by husband to set aside subpoena served by wife on Medical Practitioners Board – Argument as to Public Interest Indemnity relevance and legitimate forensic purpose – Agreement between the Medical Board and the wife disposing of the issue – Claim by husband for costs – Reserved to trial Judge.

Family Law Act 1975 (as amended)

R v Young (1999) 46 NSWLR 681
Royal Women's Hospital v Medical Practitioners Board of Victoria (2006) VSCA 85
Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 (at 102)
National Employers Mutual General Insurance Association Ltd v Waind (1978) 1 NSWLR 372 at 381-1

APPLICANT: Ms Merrix

RESPONDENT: Mr Sloane

FILE NUMBER: MLF 9584 of 2000

DATE DELIVERED: 25 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 25 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mawson

SOLICITOR FOR THE APPLICANT: Gillian Coote Family Law

COUNSEL FOR THE RESPONDENT: Mr Hammet

SOLICITOR FOR THE RESPONDENT: DKP International Lawyers Pty Ltd

Orders

1. That the subpoena filed on 20 April 2007 by the wife and addressed to the solicitor for the Medical Practitioners Board be set aside.

2. That the husband’s costs of and incidental to the Form 2 Application filed on 17 May 2007 be fixed in the sum of $4,750 AND THAT liability for the wife to pay the said costs be determined by the trial Judge at the substantive hearing.

3. That the Form 2 Application of the husband filed on 17 May 2007 be otherwise dismissed.

4. That the ex tempore judgment delivered this day be transcribed, placed on the court file and made available to the parties.

(5) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 9584  of 2000

Ms Merrix

Applicant

And

Mr Sloane

Respondent

REASONS FOR JUDGMENT

1. On 20 April 2007 the wife caused to be filed a subpoena addressed to the solicitor for the Medical Practitioners Board to produce -

   “… the whole of your file, but not limited to, details of any disciplinary action, breaches of regulations and follow-up steps taken by the Medial (sic) Board in relation to [the husband], born [September 1958].”

2. That subpoena agitated considerable activity resulting in the Medical Practitioners Board filing an affidavit sworn by Ms G and filed on 1 May 2007 that, in effect, opposed the production of the documents sought on the grounds of Public Interest Immunity.  Ms G summarised the position of the Medical Practitioners Board in paragraph 24 of her affidavit and to which I pay regard.

3. The husband also filed a Form 2 Application on 17 May 2007 in which he sought an order that the subpoena directed to the solicitor for the Medical Practitioners Board be set aside as being against the public interest.  In the alternative he sought an order, (albeit it appears to be a proposition as set out in his Application) that it was "not reasonable" to compel the production of all or any of the documents sought.  In the further alternative, he sought an order that any documentation permitted to be inspected be viewed by the trial Judge and otherwise an order that the wife pay his costs of an incidental to the subpoena.  His application was supported by an affidavit also filed on 17 May 2007. 

4. In the course of his affidavit, the husband claimed a sufficient interest in the subpoena to object to the contents and sought an order that it be set aside.  There can be no doubt that he had an interest in the subpoena.  The husband affirmed the grounds of objection stated in Part F of his objection to the subpoena and deposed that his solicitors were served with a copy of the subpoena on 20 April 2007, with the return date fixed for 1 May 2007.  The husband claimed that the wife was a specialist medical practitioner and, as such, familiar with the conduct of the proceedings of the Medical Practitioners Board of Victoria, and in particular fully aware of the restrictions imposed by the Board upon release of information to the public, of documents and of information by subpoena.

5. The husband further deposed that prior to the issue of the subpoena, the wife would have been aware of all the facts set out in the affidavit of Ms G, and in particular paragraph 24 of her affidavit.  He then referred to the acrimonious nature of the dispute between the wife and himself and in respect of which, from what little information I have, there can be no doubt, and went on to claim (par 10) that the publication of any matter set out in paragraph 24 of the affidavit of Ms G would cause him “harm and prejudice”.No particulars were provided.

6. The husband then set out certain aspects of historical record and in particular the fact that the wife, on 9 February 2006 consented to orders in respect of his spending time with his children, a daughter aged 12 years and a son aged 9 years.  He said the orders were unconditional and were expected to be acted upon by him.  He deposed that the wife had steadfastly refused to comply with the orders and made reference to earlier affidavits in support of that deposition.  He then referred to the fact that it had been necessary for him to seek that an Intervention Order obtained on 9 February 2006 be set aside.  He annexed to his affidavit four exhibits which I have considered.

7. At first blush there appeared to me to be two reasonably redoubtable hurdles to the Public Interest Immunity argument arising from the decisions of the New South Wales Court of Criminal Appeal in R v Young (1999) 46 NSWLR 681 and the Victorian Court of Appeal in Royal Women's Hospital v Medical Practitioners Board of Victoria (2006) VSCA 85. There, the court refused to create new categories of Public Interest Immunity, and affirmed that the doctrine concerned, "the conduct of governmental functions", (see R v Young (supra) per Spigelman CJ at p 54), and "the proper functioning of government", (see Royal Women's Hospital (supra) per Warren CJ at 34), and otherwise "decision-making at the highest levels of government", (see Royal Women's Hospital (supra) per Maxwell P at par 55).

8. Thus it appears to me, as matters presently stand, the Victorian Court of Appeal has made it abundantly clear that Public Interest Immunity is now limited to that which must be kept secret for the protection of Government interests at “the highest levels” and in sensitive areas of executive responsibility.  Accordingly, the rhetorical question may be asked:  was the information retained by the Medical Practitioners Board of that kind?  I think not.  For a further helpful discussion on the issue, see “Access to Confidential Medical Records by Courts and Tribunals:  the Inapplicability of the Doctrine of Public Interest Immunity” (2006) 14 JLM 15 (Bernadette McSherry)

9. However, that was not the only obstacle, for it was open to the husband to also argue relevance and legitimate forensic purpose.  As between the wife and the Medical Practitioners Board, so I was informed by Mr Mawson who appears on behalf of the wife and with which Mr Hammet, who appears on behalf of the husband, did not demur, the matter was adjusted under cover of letter dated … May 2007 which included payment by the wife to the Medical Practitioners Board of $1000 by way of costs.  Although I am not entirely clear as to when this document came into the hands of the husband's practitioners, it appears to be sometime earlier this week, perhaps being around 22 May 2007.

10. For the purpose of assisting some judge in the future, I will incorporate into this short extempore judgment the principal aspects of that letter.  It is addressed “To Whom it May Concern”, concerns the husband and details conditions imposed upon the husband's registration in 2000.  The letter goes on to set out the conditions, namely:

    “1.[The husband] will not practice medicine from 15 December 2000 until 15 March 2001.  Condition 8 below will apply from the date it is imposed by the board. 

    2.[The husband] will attend a psychiatrist and drug and alcohol specialist approved by the Board and will inform his treating doctors of the conditions on his practice.  [The husband] will arrange for reports form his treating doctors to be forwarded to the Board and will provide the Board with the names and contact details of his treating doctors within 14 days of these conditions being imposed.

    3.[The husband] will not resume practice prior to the Board receiving satisfactory reports from his treating psychiatrist and drug and alcohol specialist as approved by the Board.

    4.The Board may communicate with [the husband’s] treating doctors.

    5.The Board may request that [the husband] be examined by a Board-appointed psychiatrist and/or drug and alcohol specialist as and when the Board deems it necessary.

    6.[The husband] will inform the Board of the name of every hospital at which he operates within 24 hours of these conditions being imposed.  The Board will inform each hospital at which he operates of these conditions and will seek work reports from these hospitals.

    7.The Board will review and amend the above conditions if the Board is concerned that the conditions may have been breached.

    8.Prior to commencing any operating list, elective or emergency, [The husband] will undergo a breathalyser test under the supervision of a nominated person such as the anaesthetist or a senior administrator within the hospital.  This condition will apply from 11 December 2000.  [The husband] will not operate if he registers positive on the breathalyser test and the hospital/supervisor will inform the Board immediately of the positive result.  The results of the breathalyser test will be kept on a log signed by the supervisor and forwarded to the Board by [the husband] on a fortnightly basis.

    9.[The husband] will abstain from consuming alcohol for at 24 hours prior to consulting.”

11. The only argument now before me is whether in the whole of the circumstances the husband is entitled to his costs.  Mr Mawson submitted, generously in my view, that fixing the total of the husband's costs would be proper in the circumstances but that responsibility or liability for payment be left to the trial Judge hearing the ultimate issue; namely, whether the husband should spend time with his children.  It is a child welfare case and has an important sub-issue concerning the husband's mental health.  Mr Hammet sought $5000 by way of costs, and following submissions it seems to me that it would be appropriate to fix costs at $4725 for the reasons apparent from Mr Hammet's dissection and particulars of the costs incurred by the husband.

12. Mr Mawson argued, having regard to section 117(2A) of the Family Law Act 1975 (as amended), that the wife was "partially successful" having "flushed" out material of which she was unaware.  That was, in my view, a most significant consideration.  Mr Hammett said, however, that the wife “obtained no material in addition to that which she had” and that which had been obtained was material on the public record which could be accessed by anyone for a legitimate forensic purpose.  He otherwise referred me to paragraph 24 of Ms G's affidavit where she deposed that the husband was the subject of a formal hearing into his conduct in December 2001 and further, that the wife had received a copy of the notice for that hearing and a copy of the Board's decision in January 2002.

13. Thus I have competing submissions and I am unable to decide that issue for, one way or another, it will be established upon the giving of evidence that one of the submissions was incorrect.  I was not asked to hear that evidence.  If the wife did in fact gain “additional information” through the compromise letter of 7 May 2007, then that would have a serious effect the issue of costs.  The mirror image would also entitle the husband to costs.  Accordingly, in the rather unusual circumstances before me, I am not in a position to decide that issue.

14. Each counsel trudged back into the historical aspects of the proceedings, which was somewhat confusing, perhaps so by reason of obligatory brevity imposed by me.  Mr Mawson pointed out that during the course of the proceedings, a significant issue had been the husband's mental health.  He pointed out that in June 2003 a court order was made for a psychiatric assessment of both parties.  In the result, he said, the wife saw Dr S for assessment, but the husband did not. 

15. Mr Mawson referred to the fact that in May 2004 at a hearing before Kay J, the husband, having not been psychiatrically assessed and with the wife in pursuit of the order, abandoned his “contact” proceedings at that time.  Mr Mawson emphasised the point that there had been no psychiatric assessment of the husband.  He then said that “the wife now discovers” the husband is required to submit to psychiatric assessments, inter alia, to the Medical Practitioners Board, referring to the requirement of breath analysis and the like (par 8 and 9 of the letter dated 7 May 2007).

16. Mr Hammet in the course of his submissions, again plodding through history, pointed out that contested welfare Applications came on for hearing by way of final hearing in October 2002, after the Medical Board hearing.  He said that Dr O was a deponent at that final hearing, apparently asserting that the husband was “a danger” to the children.  At that time, as I understand the submission, the husband obtained “contact” orders, then of a supervised nature.

17. Mr Hammet pointed out that in November 2005 the wife obtained an ex parte Intervention Order, the effect of which prevented the husband spending time with the children.  In December 2005, when returnable before Magistrate Fitzgerald, it was adjourned to 9 February 2006 and an Intervention Order was made, as Mr Hammett described it, “for the benefit of the wife and of which the children were not a part”.  He pointed out that the husband submitted to the Intervention Order concerning the wife with a denial of liability. 

18. Mr Hammet emphasised the consent orders that were made on that day and which, for the purpose of better understanding the narrative history, I will incorporate into this short judgment.  The parties presented themselves before Magistrate Maughan and by consent, Mr Glick QC for the Complainant (wife) and Mr Hammet, appearing for the husband, it was ordered:

    “That with a denial of liability by the defendant, an Intervention Order for 12 months for the benefit of the complainant only in the "usual terms" directed to conduct relating to the complainant, subject to the defendant contacting the complainant for the bona fides purposes of arranging contact, facilitating contact and giving effect to the contact and arrangements with either of the children of the marriage in accordance with the following proposed Family Law Act orders; namely, the defendant have contact with either or both of the children of the marriage as follows ...”

19. The somewhat strange consent orders there set out, for example that the husband have contact (or, in more modern parlance, “spend time”) with the children from 11 am to 5 pm of a Sunday commencing in March 2006, once per month, and thereafter upon 14 days' written notice.  There were other orders made in respect of Christmas vacation and other special days such as birthdays and holidays. 

20. Mr Hammet, persistent in trawling through history, submitted that the wife “never acted” on the handwritten Minutes and the Intervention order was extended by agreement in April 2007.   So it is that the parties are going to again litigate an application by the husband to set aside those Intervention Orders.  The matter will remain also as a welfare issue in the Family Court with the husband seeking to spend time with the children.  That is the principal issue before the court.

21. Mr Hammet broadly addressed the breadth of the subpoena and legitimate forensic purpose.  However, I was not assisted by authority.  He appeared to be arguing the issue of relevance and persisted in addressing matters historic arising from the past litigious pathway. 

22. Dealing with issues such as relevance and legitimate forensic purpose, it was made perfectly clear by Beaumont J in Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 (at 102) that the issue of a subpoena would be an abuse of process of the court if it is not used for a legitimate forensic purpose. His Honour went on to state that the determination of whether a subpoena was issued for a legitimate forensic purpose depended not just upon an analysis of the motive of the issuing party but also upon the impact of the subpoena on the party upon whom it was served. As to the latter, issues would arise such as whether or not the subpoena was “seriously and unfairly burdensome or prejudicial” and imposed a burden, for example, upon the recipient to “sift through files and make a decision” as to issues such as relevance.  See also, for example, National Employers Mutual General Insurance Association Ltd v Waind (1978) 1 NSWLR 372 at 381-1 per Moffit P, with whom Hutley and Glass JJA agreed.

23. In summary, a subpoena must only be used for a legitimate forensic purpose, and that will only be so when the documents or evidence sought to be produced are relevant.  I do not think I advance the learning in the law by any measure by referring to such obvious authority but it does bear some instruction in the light of the submissions by Mr Hammet.

24. In my view, there are matters now argued before me relevant to the issue of liability for costs associated with the issue and service of the subpoena which I cannot determine without evidence.  It is plainly sensible, indeed obvious, that a Trial Judge in the substantive proceedings will be seized with answers to the question upon which I am asked to speculate.  This I will not do.  The parties are locked in bitter litigation involving welfare issues which also involves the husband's mental health as a relevant issue.  They drive the proceedings. 

25. Ultimately, when the final hearing is completed, the trial Judge will be far better seized with information than I am to determine whether or not the wife should be responsible to pay costs of $4750 for the purpose of the subpoena filed by her on 20 April 2007.  The sub-issue as to relevance and the legitimate forensic purpose can also be argued before the Trial Judge.  However, at first blush and without wishing to bind my successor to this matter, it may be that there is apparent relevance arising from the issue of the husband’s mental health and his proposed contact with the children.  However, the core of the argument will be that concerning the asserted possession of knowledge by the wife of those matters referred to in the letter of … May 2007.  That, in my view, will be the central point from which the Trial Judge will be able to make a determination after hearing evidence on the issue.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  7 June 2007.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MERRIX & SLOANE