Perez v Reynolds & Anor (Ruling No 2) - [2020] VSC 298

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2019 02972

DANIEL PEREZ	Plaintiff
v
VINCENT REYNOLDS	First Defendant
- and -
STATE OF VICTORIA	Second Defendant

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JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2020
DATE OF RULING:	27 May 2020
CASE MAY BE CITED AS:	Perez v Reynolds & Anor (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 298

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PRACTICE AND PROCEDURE – Release from obligation under s 27(1) Civil Procedure Act 2010 – Release from Harman undertaking – Consideration of special circumstances in context of parties seeking use of subpoenaed medical records relating to the first defendant – Leave granted - Hearne v Street (2008) 235 CLR 125 - Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 - Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Wilson QC and Mr J. Gordon	Rightside legal
For the Defendant	Ms M. Britbart QC and Mr B. House	Minter Ellison

HER HONOUR:

In a separate proceeding of Mulquiney v Reynolds & State of Victoria[1] (‘Mulquiney’), documents were produced under subpoena from the Department of Health and Human Services (‘DHHH’). Those documents were medical records of the first defendant, held from his admission at a clinic known as Mayday Hills where he received psychiatric treatment. Mr Mulquiney’s proceeding resolved prior to any of those records entering the public domain by being tendered into evidence.
[1]Mulquiney v Reynolds & State of Victoria , S ECI 2019 02580 (Macaulay J).

Section 27 of the Civil Procedure Act 2010 (‘the Act’) imposes an obligation on parties to that proceeding, not to use information or documents other than in connection with the proceeding in which they are produced.

Section 27 of the Act reads as follows:

27Protection and use of information and documents disclosed under overarching obligation in section 26
(1)A person who receives any information or documents provided by another person involved in the civil proceeding as a result of disclosure in compliance with the overarching obligation in section 26 is subject to an obligation not to use the information or documents, or permit the information or documents to be used, for a purpose other than in connection with the civil proceeding.
(2)The obligation under subsection (1) is taken to be an obligation to the court, contravention of which constitutes contempt of court.
(3)A person –
(a)may agree in writing to the use of information or documents otherwise protected under subsection (1); or
(b)may be released from the obligation imposed under subsection (1) by leave of the court.

(4) Without limiting this section or discovery in any civil proceeding any information or documents exchanged in compliance with the overarching obligation in section 26 is required to be discovered in the civil proceeding to be admissible in that proceeding.
(5)Nothing in this section limits any other understanding to a court (implied or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] VSC 298
Decision Date: 27 May 2020

CaseChat Overview and Summary

In Perez v Reynolds & Anor (Ruling No 2), the plaintiff, Mr Perez, sought leave to use medical records of the first defendant, Mr Reynolds, which had been subpoenaed in another proceeding. The defendants, Mr Reynolds and another party, opposed the plaintiff's application. The matter was heard in the Supreme Court of Queensland. The court was required to determine whether Mr Perez was entitled to release from the obligations imposed under section 27(1) of the Civil Procedure Act 2010, specifically the Harman undertaking, to allow the use of the subpoenaed medical records in the current proceeding.

The court considered the legal issues, focusing on whether the special circumstances existed to warrant the release from the obligations under section 27(1). The court examined relevant case law, including Hearne v Street, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd, and Liberty Funding Pty Ltd v Phoenix Capital Ltd. The court determined that the plaintiff's application for leave to use the subpoenaed medical records was supported by special circumstances, including the need for the records to establish a significant fact in issue in the current proceeding and the potential for substantial injustice if the records were not used.

Based on the court's reasoning, it was found that the special circumstances did exist, and the plaintiff's application for leave to use the subpoenaed medical records was granted. The court relied on the cases of Hearne v Street, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd, and Liberty Funding Pty Ltd v Phoenix Capital Ltd to support its decision. The court emphasised the importance of considering the balance of convenience and the potential for injustice in determining whether to release a party from the obligations under section 27(1). The final orders of the court included granting the plaintiff leave to use the subpoenaed medical records in the current proceeding, subject to the terms and conditions set by the court.

Orders