| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ROYAL -v- ALCOA OF AUSTRALIA LIMITED [2005] WADC 170 CORAM : REGISTRAR WALLACE HEARD : 27 JUNE 2005 DELIVERED : 26 AUGUST 2005 FILE NO/S : CIV 2514 of 2002 BETWEEN : DARREN ROYAL Plaintiff
AND
ALCOA OF AUSTRALIA LIMITED (ACN 004 879 298)
Defendant
Catchwords: Rules of the Supreme Court1971, O 26 r 6 - Discovery of specific documents - Medical records of plaintiff - Held by medical centre and hospital - Whether records within the power of the plaintiff - Consideration of Privacy Act 1988 (Cth) and Guidelines
Legislation: Nil
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Result:
Application allowed Representation:
Counsel:
Plaintiff : Mr K H M Wong
Defendant : Mr M S Van Brakel
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Australian Railroad Group Pty Ltd v Rowan [2004] WASC 165
Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627
Midalco Pty Ltd v Simpson, unreported; FCt of SCt of WA; Library No 6747; 1987
Case(s) also cited:
Nil
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1 REGISTRAR WALLACE: In this action the plaintiff claims damages for personal injuries which he allegedly sustained whilst working at the defendant's Kwinana plant on 19 June 2001. Now before me is the defendant's chamber summons dated 8 June 2005. The defendant seeks orders for discovery of particular documents pursuant to O 26 r 6 of the Rules of the Supreme Court 1971. Specifically, the defendant seeks discovery of the plaintiff's medical records held by:
2 In order to succeed in its application the defendant must demonstrate, in respect of each of the two sets of medical records, that the documents exist, that the documents are relevant to the matters in issue in this action, and that the documents are in the possession, custody or power of the plaintiff. 3 In support of its application, the defendant relied on the affidavit of Joanne Louise Wakely sworn on 7 June 2005. The affidavit sets out the circumstances of the plaintiff's accident and states that he was, immediately after the accident, conveyed to the Kwinana Refinery Medical Centre where he was treated by the defendant's medical officer, and that he was transferred from there to St John of God Hospital, Murdoch. 4 In par 17 of the affidavit it is deposed that, by letter dated 12 January 2005, the defendant requested that the plaintiff authorise the release of information from, inter alia, the Alcoa Kwinana Refinery Medical Centre and St John of God Hospital, Murdoch, but that such authorisation was refused - hence the present application. 5 I am satisfied that the defendant has established that the documents of which it seeks discovery do exist. I am also satisfied that the medical records sought by the defendant are relevant to matters in issue in the present action. Neither of these elements was seriously contested at the hearing. 6 What fails to be determined by me is the third element, ie whether or not the documents are within the possession, custody or power of the plaintiff. Since the documents are clearly not within the actual possession
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or custody of the plaintiff, the specific issue to be determined is whether or not the documents are within the power of the plaintiff. 7 It is the plaintiff's contention that the documents sought to be discovered are not within the power of the plaintiff, and it was on that basis that the application was opposed at the hearing. 8 Counsel for the plaintiff referred to Midalco Pty Ltd v Simpson, unreported; FCt of SCt of WA; Library No 6747; 1987 as authority for the proposition that the documents are in the possession, custody or power of the medical centre/hospital, not the plaintiff. In the Midalco case, Burt CJ stated that even if the hospital/medical practice were prepared, with the consent of the respondent, to exercise its legal rights with respect to them by showing them to the appellant, that did not establish that they were in the power of the respondent; rather, the power with respect to the documents remained with the hospital/medical practice. Counsel submitted that this remained the legal position notwithstanding the provisions of the Privacy Act 1988 (Cth). 9 Counsel for the defendant, on the other hand, submitted that the Privacy Act1988 gives the plaintiff a present, enforceable legal right to obtain the documents sought, and that Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 is authority for the proposition that a document is in the power of a party when he has a presently-enforceable legal right to obtain inspection of it from whomever actually holds it without obtaining the consent of anyone else. The Lonrho case was recently applied in the Supreme Court of WA by Le Miere J in Australian Railroad Group Pty Ltd v Rowan [2004]WASC 165. 10 I turn at this point to examine the relevant provisions of the Privacy Act in order to determine whether or not the plaintiff does, in fact, have a presently-enforceable legal right to obtain inspection of the documents. 11 Clause 6.1 of the National Privacy Principles (set out in Sch 3 to the Privacy Act) provides that: "if an organisation holds personal information about an individual, it must provide the individual with access to the information on request by the individual… "(subject to various exemptions, none of which, on their face, apply in the present case). 12 In the light of this statutory provision, I am satisfied that the plaintiff has a presently-enforceable legal right to obtain access to the documents
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to which this application relates; but does the plaintiff have a presently-enforceable legal right to inspect the documents? 13 I note that the Privacy Act provides for the appointment of a Privacy Commissioner and that one of the functions of the Privacy Commissioner is to issue directions and guidelines relating to the application of the provisions of the Privacy Act. 14 In order to ascertain the extent of a plaintiff's rights in relation to obtaining access to documents, I researched the relevant Guidelines published by the Office of the Privacy Commissioner. 15 Under the heading "NPP6 – Access and Correction" the Guidelines provide that the ways an organisation may give individuals access to information include: allowing them to inspect records, allowing them to take notes and giving them photocopies and/or printouts. 16 It is further provided in the Guidelines that the appropriate length of time to be allowed for an organisation to respond to an individual's request for access to information/documents will be influenced by various factors including the type and amount of information and number of documents requested, the method of communication of the information, etc. 17 In view of the provisions outlined above, I am persuaded that the plaintiff in the present case does have a presently-enforceable legal right to obtain inspection of the documents in question. That being so, I conclude on the authority of Lonrho Ltd v Shell Petroleum Co Ltd (supra) that the documents are within the power of the plaintiff. 18 For that reason, I propose to order that the plaintiff give discovery of the medical records sought. 19 I shall hear counsel in respect of the period within which discovery be given and in relation to costs.
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