Pollard v Endale Pty Ltd
[2009] WADC 97
•10 JULY 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: POLLARD -v- ENDALE PTY LTD [2009] WADC 97
CORAM: SLEIGHT DCJ
HEARD: 22 MAY 2009
DELIVERED : 10 JULY 2009
FILE NO/S: CIV 823 of 2005
BETWEEN: ROBERT JAMES POLLARD
Plaintiff
AND
ENDALE PTY LTD
Defendant
Catchwords:
Appeal against refusal of Deputy Registrar to grant specific discovery - Relevance of accreditation procedure - Inherent jurisdiction to order discovery - Order 26 r 6 of Rules of the Supreme Court
Legislation:
District Court Rules
Rules of the Supreme Court
Result:
Appeal allowed in part
Representation:
Counsel:
Plaintiff: Mr R E Lindsay
Defendant: Ms C A Elphick
Solicitors:
Plaintiff: S C Nigam & Co
Defendant: DLA Phillips Fox
Case(s) referred to in judgment(s):
Australian Railroad Group Pty Ltd & Ors v Rowan & Anor [2004] WASC 165
Blythe v State of Western Australia [2008] WASCA 10
Chandler & Ors v Water Corporation [2004] WASC 95
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company [1882] 11 QBD 55
Field v Commissioner for Railways NSW (1957) 99 CLR 285
Hazart Pty Ltd v Rademaker (1993) WAR 26
John Allan Ltd v Keegan [1968] WAR 125
Leighton Contractors Pty Ltd v Public Transport of Western Australia [2007] WASC 65
Lewkowski v Burgalin Pty Ltd, unreported; WASCA; Library No 7675; 26 May 1989
Mulley & Marney v Maniford (1959) 103 CLR 341
Oberdan v Commonwealth Bank (1999) 75 SASR 152
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
SLEIGHT DCJ: This is an appeal against a decision of Deputy Registrar Harman dismissing an application by the plaintiff seeking further and better discovery of documents.
Under O 15 r 6 of the District Court Rules the appeal is by way of a new hearing of the matter (see Hazart Pty Ltd v Rademaker (1993) WAR 26, Malcolm CJ at p 28).
Action
The plaintiff alleges in this action as follows:
(a)He was a patient in the defendant's hospital when he was operated on by a Dr David Kennedy on 25 May 1999 and 23 November 1999 in relation to ankle injuries.
(b)The defendant selected Dr Kennedy as a member of a panel of medical practitioners to operate at the hospital and permitted him to operate and treat patients at the hospital.
(c)The defendant had a duty of care to:
(i)take reasonable care and skill in selecting sufficiently qualified and experienced medical practitioners on its panel to operate on and treat the plaintiff;
(ii)monitor the performance of the medical practitioners on its panel in order to record, control and eliminate repeated clinical errors;
(iii)ensure that its apparatus, equipment and facilities would be used competently and appropriately by the medical practitioners on its panel when he or she treated and operated on the plaintiff at the hospital.
(d)That by reason of the operations the plaintiff suffered various injuries and is left with various residual disabilities.
(e)Dr Kennedy in carrying out the two operations failed to carry out various appropriate procedures, used inappropriate procedures and failed to give proper advice (particulars contained in pars 12 and 13 of an amended statement of claim dated 27 April 2006).
The pleaded alleged breaches of duty of care and causation are contained in pars 14, 15 and 16 of the amended statement of claim and plead as follows:
"14.The injuries pleaded in paragraphs 6 and 9 were sustained by the Plaintiff due to the Defendant's breach of its duty of care owed to the Plaintiff.
PARTICULARS OF BREACH
14.1The Defendant failed to take all reasonable care and skill in selecting Dr Kennedy on its panel of medical practitioners to carry out arthroscopic surgeries on private patients in the hospital in that Dr Kennedy was not a qualified Orthopaedic Surgeon competent to practise orthopaedics in the State of Western Australia;
14.2the Defendant with the knowledge that Dr Kennedy was not an Orthopaedic Surgeon permitted him to carry out arthroscopic surgeries on the Plaintiff's right ankle in the first operation and the second operation;
14.3the Defendant failed to adequately monitor the performance of Dr Kennedy in order to provide and maintain an appropriate standard of medical service in the hospital particularly, it failed to adequately monitor –
14.3.1the performance of Dr Kennedy in respect of each and every operation performed by Dr Kennedy at the hospital;
14.3.2the records completed by Dr Kennedy in respect of each and every operation performed by him at the hospital;
14.3.3the progress of patients operated on by Dr Kennedy or treated by him at the hospital;
14.4the Defendant failed to ensure that its apparatus, equipment and facilities would be used competently and appropriately by Dr Kennedy when he operated on the Plaintiff at the hospital.
15.By reason of the Defendant's breach of duty of care as pleaded in paragraph 14 hereof the Plaintiff underwent the first operation, pleaded in paragraph 5 hereof, which caused the surgical injuries pleaded in paragraph 6 hereof and further he underwent the second operation, pleaded in paragraph 8 hereof, which caused the surgical injuries pleaded in paragraph 9 hereof.
16.Had the Defendant adequately monitored the performance of Dr Kennedy before the first operation or the second operation the Defendant would have been alerted to the matters pleaded in paragraphs 12 and 13 hereof and consequently to the fact that Dr Kennedy was not sufficiently experienced or qualified to perform the first operation or the second operation and the Defendant would have appointed an Orthopaedic Surgeon with the required experience and qualifications to perform the operations in which case the Plaintiff would not have sustained the injuries pleaded in paragraphs 6 and 8 hereof and the residual disabilities pleaded in paragraph 11 hereof."
Further and better particulars of the statement of claim dated 10 July 2006 provided further particulars in relation to these allegation as follows:
"REQUEST 4
4As to paragraph 14 of the Statement of Claim, state:-
4.5the period of time during which the Defendant ought to have 'adequately monitored':-
4.5.1each operation performed by Dr Kennedy at the hospital;
4.5.2records completed by Dr Kennedy in respect of each operation performed by him at the hospital;
4.5.3the progress of patients operated on by Dr Kennedy or treated by him at the hospital;
4.6each fact upon which the Plaintiff alleges the Defendant had the ability to adequately monitor:-
4.6.1each operation performed by Dr Kennedy at the hospital;
4.6.2records completed by Dr Kennedy in respect of each operation performed by him at the hospital;
4.6.3the progress of patients operated on by Dr Kennedy or treated by him at the hospital;
ANSWER 4
4
4.5
4.5.1on and during the first admission and the second admission of the Plaintiff;
4.5.2consistent with hospital audit procedures and the hospital accreditation standards( my emphasis);
4.5.3during the Plaintiff's admission to the hospital;
4.6
4.6.1operation notes completed by Dr Kennedy in respect of the first operation and the second operation accessible to hospital to ensure that treating doctor not exceed procedures for which he is accredited;
4.6.2records on admission and hospital notes as part of 'Quality care' (not just a term but a specific determinant);
4.6.3
4.6.3.1hospital monitoring of 'Quality care' (not just a term but a specific determinant) procedures and protocols consistent with hospital accreditation (my emphasis) and Dr Kennedy's accreditation with the hospital;
4.6.3.2peer review within the hospital;
Further discovery sought
The plaintiff seeks orders by way of further and better discovery of the following documents:
"1.1all correspondence, prior to the 23rd November 1999, between the Defendant and the Australian Council of Healthcare Standards ('ACHS') in relation to accreditation of the hospital referable to 1999 including the following:-
1.1.1the Defendant's initial application for accreditation with ACHS and any renewals relating to accreditation in year 1999;
1.1.2the Defendant's self-assessment of its compliance of the standards specified by ACHS;
1.1.3the survey report or reports by external surveyors referable to year 1999;
1.1.4written reports on the Defendant's performance referable to year 1999;
1.1.5the Defendant's quality action plan ('QAP') to improve its services further and to address any deficiencies;
1.1.6documents relating to the EQuIP cycle under which the Defendant obtained accreditation of the hospital;
1.1.7the aforesaid class of documents to include any documents relating to medical appointments, clinical review and assurance of clinical quality, as well as commentary relevant to the credentials and scope of practice of medical practitioners using the Defendant's facilities;
1.2any documents or class of documents relating to Dr David Kennedy's status at the hospital including:
1.2.1those which define his role;
1.2.2any letter or written statement to the nursing or theatre staff about his role;
1.2.3any deliberations of the Defendant or its Health Advisory Committee in relation to Dr Kennedy's appointment and about the appropriateness of his clinical access at the hospital;
1.2.4any documents relevant to the EQuIP standard that requires regular review of credentials and scope of practice for a medical practitioner such as Dr Kennedy who has clinical access at the hospital.
1.3any document pursuant to EQuIP standard 4 and criterion 4.2.6 relevant to Dr Kennedy's treatment of the Plaintiff including any records relating to continuing of care, education, research, evaluation and medico-legal and statutory requirements;
1.3.1any documents relating to compliance by Dr Kennedy with criterion 4.2.6 in relation to the Plaintiff including all clinical records facilitating continuity of care, education, research, evaluation and medico-legal and other statutory requirements;
1.3.2any documents pursuant to EQuIP standard 5.1, which refer to the implementation of a programme for the management of risks; which adopt principles of safe practice; that enable relevant statutory requirements, codes of practice and/or Australian Standards to be met and whereby clinical risk is managed at the hospital including documents which relate to a medical practitioner's permitted scope of practice."
Legal Principles
Rule 46 of the District Court Rules provides relevantly as follows:
"(1)The RSC O 26 applies to an action commenced by writ, subject to this rule.
(2)Subject to any order made by the Court, each party to the action must give each other party discovery of all documents that are or have been in the party's possession, custody or power relating to any matter in question in the action."
RSC O 26 R 6 provides as follows:
"6. Order for discovery of particular documents
(1)Subject to Rule 7 the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document specified or described is, or has at any time been, in his possession custody or power, and if not then in his possession custody or power when he parted with it and what has become of it.
(2)An order may be made against a party under this Rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under Rule 1 or Rule 7.
(3)An application under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has, or at some time had, in his possession, custody or power the document or class of document specified or described in the application and that it relates to one or more of the matters in question in the cause or matter."
Rule 7 provides the types of orders that can be made on application or by the court of its own motion.
I conclude that from these provisions and the authorities that the following general principles apply:
(1)The District Court has an inherent power arising from Rule 46 of the District Court Rules to order further discovery (this inherent jurisdiction is akin to that which exists in the Supreme Court to supervise the conduct of its litigation – see Chandler & Ors v Water Corporation [2004] WASC 95 per Hasluck J at [16]).
(2)A list of documents verified by affidavit served pursuant to the discovery process is generally treated as conclusive as to its contents unless it appears that a party may possess a document or class of documents which relate to matters in question which have not been discovered (Chandler supra [10 – 11]).
(3)In an application to the Court's inherent jurisdiction the applicant, when seeking to displace the conclusive nature of the affidavit of discovery, is confined to information emanating from the opponent's affidavit and list, the documents the opponent discloses and the opponent's admissions, and may not rely upon a contentious affidavit. Limited to those materials, the Court may make an order if it has reasonable grounds for being fairly certain that there are other documents which ought to have been disclosed, or if it is practically certain that the party making the affidavit has misconceived his or her case and that if he or she had acted upon a proper view of the law he or she would have disclosed further documents.
(4)The power under O 26 r 6 of the Rules of the Supreme Court is thought to enlarge that inherent power: Chandler supra at [16] (although I have some doubt whether the distinction with an application under the inherent jurisdiction has any real practical consequences as most applications will be based under both jurisdictional grounds and it is a matter of looking at the totality of the material to decide whether an order should be made). The application for particular discovery under O 26 r 6 must be supported by an affidavit. The affidavit is to set out a belief that relevant documents were omitted from the affidavit of discovery. The facts in support of this belief must be stated in the affidavit (Chandler supra at [12]).
(5)Order 37 r 6(2)(a) of the Rules of the Supreme Court provides that an affidavit used for the purposes of interlocutory proceedings may contain statements of information or belief. Preferably statements of information or belief in affidavits should follow the form "I have been informed by X and verily believe" (see Lewkowski v Burgalin Pty Ltd (unreported; WASCA; Library No 7675; 26 May 1989). This form is preferable not because the Court requires ritualised behaviour, but because it clearly indicates the source of the information, states the information and states the deponent believes that what X has said is true (see Blythe v State of Western Australia [2008] WASCA 10).
(6)An affidavit filed in support of an application for specific discovery must offer substantial assistance to establish whether the particular documents to which the application refers exist and relate to a matter in question (see Chandler supra [13]; John Allan Ltd v Keegan [1968] WAR 125 at 128).
(7)A party is entitled only to discovery of documents that relate to issues in the proceedings. The pleadings are the principal source of defining the matters in issue in the proceedings (Australian Railroad Group Pty Ltd & Ors v Rowan & Anor [2004] WASC 165 at [22]).
(8)The pleadings, the list of discoverable documents and the discovered documents themselves are not the only basis for establishing the insufficiency of the list of discoverable documents. The affidavit in support of an application under O 26 r 6 can present material to demonstrate the existence of documents in the possession of the other party relating to matters in issue which have not been discovered Mulley & Marney v Maniford (1959) 103 CLR 341 per Menzies J at 343.
(9)The Court must be able to infer from the nature of the documents sought to be discovered that they are relevant; it will not speculate as to their relevance: Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 per Master Newnes at [3].
(10)In determining whether a document relates to a matter in question, and therefore, ought to have been discovered the test is set out in the decision of Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company [1882] 11 QBD 55 as follows:
"It seems to me that every document relates to matters in question in the action which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in words 'either directly or indirectly' because it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance its own case or to damage the case of its adversary, if it is a document which may fairly lead to a chain of inquiry, which may have either of those two consequences."
(11)It is important to bear in mind that there is not a strict entitlement to an order for discovery, including an order for further discovery. Moreover, in recent times principles of case management emphasise a need to have regard to the timely and cost effective disposal of the action in the exercise of the discretion to order discovery (Youlden supra at [6]). The Court should only make such order of specific discovery as is necessary in the interests of a fair trial: Leighton Contractors Pty Ltd v Public Transport of Western Australia[2007] WASC 65, at [20]; Australian Railroad Group Pty Ltd v Rowan and Anor[2004] WASC 165 per Le Miere J at [36].
(12)Factors to be considered in making or framing an order for discovery depend upon the circumstances of each case but will often include the likely time, cost and inconvenience of making discovery of any documents or classes of documents by way of comparison with the amount of documents involved in the action, the relative importance or likely relevance of them in relation to any issue or issues in the action and the probable effect on the outcome of the action of a party obtaining access to the documents or class of documents. Generally, the court will try to avoid making discovery orders that would place an oppressive burden on a party such that it must devote disproportionate resources to the search for relevant documents: Leighton Contractors supra per Le Miere J at [18].
(13)The extent of the obligation to make discovery is much greater in contemporary times. That is because of the proliferation of records and because a document now includes not only writing on paper but other documents including tapes, discs and computer hard drives storing electronic data: Oberdan v Commonwealth Bank (1999) 75 SASR 152. When the factual situation is said to have arisen over a number of years the obligation is even greater. However, the burden to make discovery in those circumstances is not oppressive by reason that a party is a large corporation and the issues are complex and because the factual situation is said to have arisen over a number of years: Leighton Contractors supra [19].
Notwithstanding the above principles supported by authority it seems to me that within the liberal approach of case management much greater scope exists for the Court to make novel orders concerning discovery where such orders are likely to avoid long technical arguments in interlocutory applications. I believe that in the appropriate case it may be just to require a party to file an affidavit confirming a particular document or class of documents is not in its possession and thereby look behind the conclusiveness of a filed affidavit of discovery. I believe this more robust approach to reduce long technical arguments about affidavit material is consistent with what was said in Youlden (supra).
The plaintiff's application
The plaintiff has filed three affidavits in support of its application (two of which were filed in the appeal proceedings). His affidavits are as follows:
1.An affidavit of Sharad Chandra Nigam (solicitor for the plaintiff) sworn 11 December 2008.
2.An affidavit of Sharad Chandra Nigam sworn 22 January 2009.
3.An affidavit of Sharad Chandra Nigam sworn 3 April 2009.
In broad terms these affidavits depose that the plaintiff has briefed a Dr Jon B Mulligan to act as an expert witness and to provide his opinion on liability issues. The defendant has given discovery of two documents, the Mount Lawley Private Hospital Practitioners Policy Manual and the defendant's Patient Pre‑Admission Form. Both of these documents make reference to the "Australian Council of Healthcare Standards" (ACHS). The defendant's Patient Pre‑Admission Form states on the heading "Mount Lawley Private Hospital – A Fully Accredited Hospital By ACHS". On the assumption that these documents indicate that the defendant is accredited by ACHS, Dr Mulligan has given advice that documentation pursuant to the accreditation process with ACHS is relevant to the issues of liability upon which his opinion is sought.
The affidavits exhibit various letters of advice and opinion from Dr Mulligan as follows:
(i)A letter of advice dated 7 November 2008.
(ii)An initial report and opinion dated 19 November 2008.
(iii)A letter of advice dated 23 January 2009.
The advice of Dr Mulligan in this material can be summarised as follows:
(a)The accreditation programme run by ACHS is a voluntary programme.
(b)In seeking accreditation, an applicant hospital agrees to participate in a cycle of events (an Evaluations and Quality Improvement Programme, known as "EQuIP") which is developed to assist in achieving and complying with the standards at a level sufficient to warrant accreditation.
(c)A hospital that applies for accreditation presents a written submission setting out the way in which it applies and conforms with the standards set by ACHS.
(d)On application, the hospital is reviewed by external surveyors who submit a comprehensive report outlining their findings both in relation to hospital performance against the standards and their recommendations (if any) for improvement.
(e)On receipt of the report of the external surveyors, the hospital then prepares a Quality Action Plan (QAP) outlining its plans to deal with issues identified.
(f)The risks to patients flowing from clinical care in acute hospitals and the importance of formally establishing the credentials of and appropriately limiting medical practitioners' practice to fields in which they are competent is a key element of effective clinical governance and is required under the EQuIP standards.
(g)References in the EQuIP standards to staff include by definition "employed, visiting, sessional, contracted or volunteer". Dr Kennedy's status at the hospital would be expected to be defined in his letter of appointment.
(h)EQuIP Standard 3.2 requires that on appointment staff receive a written statement of their accountabilities and responsibilities which specifies their role.
(i)EQuIP Standard 3.2 also requires regular review of credentials and scope of practice. It follows that a system should be in place that reviews the qualifications, performance and any problems detected.
(j)EQuIP Standard 4 (at criteria 4.2.6) specifies:
"That every patient has a sufficiently detailed record to assist with continuity of care, education, research, evaluation and medico‑legal and statutory requirements."
Furthermore Standard 4 requires each organisation to consider what clinical information it requires to achieve this goal and this recommended element. The list includes the reason for admission to hospital, a comprehensive plan of care, care ordered and delivered and original reports of operation and other procedures, follow up instructions and continuing management requirements.
(k)EQuIP Standard 5.1 specifies that risk to all persons within the organisation should be minimised. Criterion 5.1.1 requires that:
"The organisation implements a programme for the management of risk that adopts the principles of safe practices that meet statutory requirements, codes of practice and Australian Standards."
(l)Although ACHS accreditation indicates that a hospital accredited was assessed as meeting the standards of ACHS at a sufficient level to warrant that award, it does not mean that every standard was met and in particular, that the specific standards identified by Dr Mulligan in his reports, were met fully (letter of advice of Dr Mulligan dated 23 January 2009).
Objections to affidavit material argued by the defendant
The defendant has raised a number of objections against the affidavit material presented by the plaintiff.
(i) Affidavit of Sharad Chandra Nigam dated 3 April 2009
Annexure "A" to this affidavit consists of a document being the substance of a letter dated 20 January 2009 from the defendant's solicitors DLA Phillips Fox addressed to the plaintiff's solicitors. An affidavit of Catherine Anne Elphick sworn 22 January 2009, and filed by the defendant, states that the letter from DLA Phillips Fox dated 20 January 2009 was a "without prejudice" letter sent in the course of an attempt to settle proceedings and contained a number of submissions for that purpose. The defendant objects to the use of this without prejudice communication.
The law is that statements made in "without prejudice" communications cannot be put in evidence. The rationale for this rule is to enable parties in the course of negotiations to communicate with one another freely. In Field v Commissioner for Railways NSW (1957) 99 CLR 285, Dixon CJ, Webb, Kitto and Taylor JJ said at 297 that the form of privilege is however, directed against express or implied admissions. In Chandler (supra) Hasluck J at [49 ‑ 50] expressed the view that the rule was not confined to admissions but extended to "without prejudice statements which touch upon the strengths and weaknesses of the party's case or place a valuation on a party's right". This, he says, is consistent with the public policy considerations referred to in Field's case and also overcomes difficulties of dissecting identifiable admissions from the rest of the without prejudice communication.
However, in this case the use of the statements contained in annexure A of Mr Nigam's affidavit is primarily to give context to opinions expressed by Dr Mulligan in response to argumentative propositions contained in annexure A as to the relevance of the ACHS accreditation process and issues pertaining to the question of the extent of the duty of care. The views of Dr Mulligan could have just as easily been obtained by putting the argumentative propositions to him in a hypothetical form.
Use of annexure A in this way, to provide a contextual frame for the response of Dr Mulligan, does not in my view make annexure A inadmissible except so far as it may contain express or implied admissions. Insofar as it does contain express or implied admissions or statements of fact then its contents will be ignored by me. There is one significant admission contained, that is, that the defendants are accredited with ACHS but this, for the reasons outlined above, is inadmissible and will not be taken into account.
(ii) No basis for beliefs expressed in affidavits
The defendant objects to the admissibility of the affidavit material of Mr Nigam in the two affidavits sworn on 11 December 2008 and 22 January 2009 respectively on the basis that the deponent does not state in the affidavits the basis for his beliefs that the documents sought to be discovered exist, are relevant and have not been discovered.
The affidavit of Mr Nigam dated 11 December 2008 annexes the Hospital Manual of the defendant which refers to the ACHS standards and the defendant's Pre‑Admission Form which states the hospital is an accredited hospital.
In par 14 of Mr Nigam's affidavit sworn on 11 December 2008 reference is made and a copy annexed of the letter from Dr Mulligan dated 7 November 2008. This letter seeks further information concerning Dr Kennedy's application for appointment, his credentials, the scope of his appointment and how this complied with the relevant ACHS Standards. Mr Nigam deposed that he believed "the information requested by Dr Mulligan is in the possession, custody or power of the defendant which relates to the defendant obtaining its hospital accreditation with ACHS and the defendant is required to keep records in respect of the same". Paragraph 15 of the same affidavit annexes a document containing the substance of the initial report and opinion of Dr Mulligan dated 19November 2008. This document contained the information earlier set out earlier in this decision as a summary of Dr Mulligan's advice [except subparagraph (l)].
In par 5 of Mr Nigam's affidavit sworn on 22 January 2009 Mr Nigam deposes that he believes the defendant's list of documents does not disclose all documents that are or have been in the defendant's possession, custody or power relating to the matters in question in the action. He further states in par 7 that Dr Mulligan has expressed the belief that the documents sought to be included in the defendant's discovery should have been in the possession, custody or power of the defendant. Further, Mr Nigam in his affidavit of 22 January 2009 annexes a copy of the defendant's list of discoverable documents. This list does not contain any documents fitting the description which would match the type of documentation sought in the plaintiff's application relating to the ACHS accreditation and standards.
In my opinion, the basis of Mr Nigam's beliefs are adequately set out in the affidavit material being clearly based upon the references to ACHS Standards in documents of the defendant, the advice received from Dr Mulligan and the defendant's list of discoverable documents.
Deputy Registrar's decision
Although, the hearing of this appeal is a new hearing, consideration ought to be given to the reasons of the Deputy Registrar. The Deputy Registrar was critical of the fact that the plaintiff had failed to satisfy him that the documents had not already been discovered. In my opinion this issue has now been removed by the plaintiff subsequently filing in these appeal proceedings the further affidavit of Mr Nigam sworn on 23 January 2009 annexing the defendant's list of discoverable documents. As mentioned earlier, this list does not include any documents which would appear to meet the description of the documents now sought by the plaintiff. Nor has the defendant argued that the documents have already been discovered.
The Deputy Registrar also concluded that he was not persuaded by the material before him that the documents relating to the ACHS accreditation process were sufficiently relevant. That conclusion is central to the challenge made by the appellant on this appeal.
Are the documents relevant to ACHS standards and accreditation discoverable documents?
As stated above, the defendant's discovered documents include a Hospital Manual which refers to the ACHS standards and the defendant's Pre‑Admission Form which states the hospital is an accredited hospital. Further, the affidavits of Mr Nigam annex advice from Dr Mulligan as to the procedure involved in obtaining accreditation and the documents that ought to exist in relation to such accreditation process. Based upon this material I am satisfied that it is likely that the defendant is accredited with ACHS and that it would have lodged and received the documentation identified by Dr Mulligan as a part of the process of seeking accreditation.
The next issue is whether they are sufficiently related to the matters in issue applying the test in the Peruvian Guano case (supra).
The nature of the plaintiff's claim is that he alleges the defendant failed to take reasonable care and skill in the selection of Dr Kennedy and failed to adequately monitor his performance. Relevant to these central issues are the procedures the defendant had in place to ensure that it did exercise reasonable care and skill in the selection of Dr Kennedy and the monitoring of his performance.
On the basis of the material from Dr Mulligan it is reasonable to infer that the defendant is likely to have documents in its possession indicating what system the defendant itself sought to implement under the ACHS standards relevant to appointing of persons such as Dr Kennedy and the monitoring of the performance of such doctors. The nature of such systems implemented by the defendant is relevant to the issue of the duty of care alleged and the alleged breaches of care.
The defendant argues that the ACHS standards are not relevant to the issues in this action because the ACHS accreditation is not compulsory and it is not alleged in the pleadings that the defendant was obliged to adhere to the standards of ACHS and had breached these standards. The defendant submits this distinguishes this matter from Rowan's case (supra) wherein specific discovery was ordered in relation to an application for accreditation where the accreditation was a statutory requirement. However, these submissions misconceive the relevance of the standards of ACHS in this action. Regardless of whether the accreditation is compulsory or voluntary, the relevance of the documentation sought is to establish what procedures and standards the defendant adopted. The system the defendant had in place under the ACHS accreditation procedures concerning the appointment and monitoring of doctors is relevant to the pleaded breaches that the defendant failed to take all reasonable care and skill in appointing Dr Kennedy and monitoring his performance. Further, the defendant's procedures and protocols pursuant to the ACHS accreditation are specifically pleaded in the further and better particulars 4.5.2 and 4.6.3.
Accordingly, I conclude that documentation relating to the defendant's accreditation application is sufficiently relevant to the plaintiff's claim so as to be discoverable.
Will the sought discovery be oppressive?
It is submitted by the defendant that if the Court makes an order in terms of the plaintiff's application then the obligation to give discovery would be oppressive. The affidavit of Ms Elphick earlier referred to in this decision annexed an index of the EQuIP standards and it is clear that the standards cover a variety of irrelevant topics (for example, maintenance, energy and water, and industrial relations). Further, it is submitted the application itself seeks documents beyond what is fair even if the ACHS accreditation procedure and standards are relevant.
Conclusions
I conclude that in broad terms that the plaintiff is entitled to orders for specific discovery relating to ACHS accreditation and standards. However, I conclude that orders should not be made in terms of the current application but in an amended form.
As to par 1.1 of the orders sought, the requirement to give discovery of "all correspondence" is in my opinion too wide and is thereby oppressive. The discovery should be limited to documents lodged with the Australian Council of Healthcare Standards to obtain the 1999 accreditation.
As to pars 1.1.1 to 1.1.5 inclusive of the orders sought, the documents are to be limited to documents lodged in support of the 1999 accreditation (including any prior application insofar as the application for the 1999 accreditation was simply a renewal or is based upon an earlier application) and further limited to matters pertaining to the appointment and monitoring of medical practitioners using the defendant's facilities (this is to include documents pertaining to credentials and scope of practice).
I am not prepared to make orders in terms of par 1.1.6 of the orders sought as in my opinion the scope of the documents sought is too broadly defined and not adequately tied to the issues of the case.
In relation to par 1.2 of the orders sought, the documents sought are clearly relevant. However, there is no material before me to conclude that such documents might exist and have not been discovered. It may well be that after specific discovery of items referred to in par 1.1, and pars 1.1.1 to 1.1.5, there may be a basis for seeking further discovery as sought in par 1.2, or requiring the defendant to confirm by affidavit that no such documents exist.
In relation to pars 1.3, 1.3.1 and 1.3.2 of the orders sought, I conclude that the orders are too broadly defined, vague in their meaning and accordingly oppressive. Again, it may well be that with the further discovery I have ordered relating to the defendant's application for accreditation, the plaintiff will be able to identify further documents created under EQuIP criteria 4.2.6 and 5.1 which are relevant to the monitoring of Dr Kennedy and seek further orders of discovery.
On the basis of the above, I allow the appeal in part. I will hear counsel as to the form of final orders.
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