Secure Funding Pty Ltd v AB [No 2] - [2023] WASC 306

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SECURE FUNDING PTY LTD -v- AB [No 2] [2023] WASC 306
CORAM:   STRK J
HEARD:   31 JULY 2023
DELIVERED          :   31 JULY 2023
PUBLISHED           :   11 AUGUST 2023
FILE NO/S:   CIV [REDACTED]
BETWEEN:   SECURE FUNDING PTY LTD
Plaintiff
AND
AB
Defendant

Catchwords:

Practice and procedure - Subpoena to produce documents - Whether subpoena should be varied after production of documents - Whether inspection of documents should be permitted - Confidentiality - Exercise of discretion - Adjournment - Whether determination of application ought await determination of guardian ad litem application - Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 20A‑F
Rules of the Supreme Court 1971 (WA), O 25 r 8A

Result:

Application adjourned part heard

Category: B

Representation:

Counsel:

Plaintiff	:	G D Cobby SC
Defendant	:	In Person
Non-party applicant	:	G C Semmens

Solicitors:

Plaintiff	:	Norton Rose Fulbright Australia
Defendant	:	In Person
Non-party applicant	:	G C Semmens

Cases referred to in decision:

Apache Northwest Pty Ltd v Western Power Corporation [1998] WASCA 127; (1998) 19 WAR 350
Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Director-General Department of Community Services v D [2006] NSWSC 827; (2006) 66 NSWLR 582
Jensen v Nationwide News Pty Ltd [No 6] [2018] WASC 415
National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372
Stanley v Layne Christensen Co [2004] WASCA 50

STRK J:

(This judgment was delivered extemporaneously on 31 July 2023 and has been edited from transcript to correct infelicity of language and to include complete references in the form of footnotes. I consider that it may be of assistance to the defendant going forward to have these written reasons with complete references included. Given the reference in these reasons to the plaintiff's pending application seeking the appointment of the Public Trustee as the defendant's guardian ad litem, the identity of the defendant has been anonymised.)

Introduction

At the request of the plaintiff and by order made by Kenneth Martin J on 2 December 2022, the court on 6 December 2022 issued to Christopher G Semmens a subpoena to produce documents which was returnable on 11 January 2023.
In summary, Mr Semmens today seeks relief in relation to the subpoena and is not represented in that endeavour. While he has produced documents in response to the subpoena, he seeks that the terms of the subpoena be varied so as to exclude the vast majority of the documents now produced (described in these reasons as clinical records), says that the clinical records ought not be inspected, and claims privilege with respect to some documents.
The plaintiff presses for Mr Semmens' application to be dismissed and for inspection of all of the documents produced by Mr Semmens, save for a sub-set over which privilege is claimed. The plaintiff does not press for inspection of that sub-set.
As to the defendant's position, while the defendant first sought that the hearing of Mr Semmens' application be adjourned as it was listed on a date that she had indicated she was not available, the defendant has attended court with a support person and has been heard today in relation to the subpoena and inspection. As to the defendant's position, at the outset of the hearing the defendant asked that I respond to a number of questions concerning the court's jurisdiction. The defendant demanded that the court answer several 'points of enquiry' as to the court's jurisdiction by reference to s 16 and s 23 of the Supreme Court Act 1935 (WA), and queried whether the court was 'governed by the Crown of England or the Governor'.[1] I understood the defendant to submit that where jurisdiction is not positively established by the court, the subpoena issued must be an abuse of process. The defendant otherwise pressed for the subpoena to be set aside and for there to be no inspection of the documents produced by Mr Semmens.
[1] ts 201 (31 July 2023).
It is convenient to begin with some background to explain how these issues arose.

Background

An action was commenced by the plaintiff against the defendant in 2013. In short, it is a recovery action by which the plaintiff seeks to recover money alleged to be due to it by the defendant, together with an order for possession of a property mortgaged in its favour. The action is defended and a counterclaim is pressed. The current iterations of the pleadings are the plaintiff's amended statement of claim filed on 16 August 2022, and the defendant's substituted defence and counterclaim filed on 31 August 2022. The defendant's substituted defence and counterclaim was filed on behalf of the defendant by her former solicitors. While the defendant was represented by solicitors in the action from 4 December 2013 to 8 September 2017, and again from 14 June 2022 to 10 January 2023, she presently appears in person.
The defendant pleads that at all material times, the defendant was in a position of special disadvantage vis-à-vis the plaintiff, which was known to the plaintiff, among other things, by reason of the plaintiff (through its agent) being aware that the defendant suffered from post‑traumatic stress disorder.
On 9 September 2022, the parties were granted leave to adduce expert evidence at trial, and by 16 September 2022 the defendant was ordered to provide the plaintiff with a copy of the report or the substance of the evidence of any expert witness whose evidence is to be adduced by the defendant.
Mr Semmens is a clinical psychologist. At the request of the defendant (through her former solicitors) Mr Semmens prepared an expert report dated 21 September 2022 which was filed in this proceeding on that date. In the report Mr Semmens records that he has been the defendant's clinical psychologist since 2008, and the opinions contained in his report are based wholly on his specialised knowledge as a clinical psychologist, and as the defendant's clinical psychologist. In his report, among other things, Mr Semmens describes in general terms the symptoms of post‑traumatic stress disorder; describes from his knowledge of the defendant's condition and based on his clinical observations of the defendant, any symptoms of post‑traumatic stress disorder exhibited by the defendant; opines as to whether any of those symptoms affect the defendant's 'Decision Making Abilities' (as defined in his report); and opines as to whether the defendant's 'Decision Making Abilities' were, or may have been, affected by post‑traumatic stress disorder between early 2006 and late 2009.[2]
[2] Affidavit of R J Black sworn 17 May 2023, RJB-14; ts 207 (31 July 2023).
At the request of the plaintiff and by order made by Kenneth Martin J on 2 December 2022, the court on 6 December 2022 issued to Mr Semmens a subpoena to produce documents which was returnable on 11 January 2023. By operation of the subpoena, Mr Semmens was ordered to produce:
All documents relating to the defendant, [redacted], including (without limitation):
1.All notes, records and correspondence about, with, or relating to, [the defendant].
2.All articles relied upon, documents referred to in, notes or other documents created, correspondence sent and received, and all drafts, in respect of your report dated 21 September 2022.
3.All articles authored by [Mr Semmens] relating to Posttraumatic Stress Disorder.
I understand that the reference to the report of Mr Semmens dated 21 September 2022 in the subpoena is a reference to the report of Mr Semmens filed in this action on behalf of the defendant on the same date.
A review of the court record reveals that on 18 January 2023, Mr Semmens wrote to the court in relation to the subpoena. He provided an electronic copy of what he described as 'the six relevant references related to my report'. Further, in response to the subpoena, Mr Semmens informed the court that:
With regard to the complete copy of the clinical psychology session notes for [the defendant], I do not release this information as I am compelled by my profession's code of ethics to protect the confidentiality of proceedings occurring in our clinical psychology sessions. I adhere to a conscientious objection to breaching this confidentiality.
While Mr Semmens in his letter of 18 January 2023 sought to explain his refusal to comply with the subpoena, no request was made by Mr Semmens to set aside the subpoena, nor did he seek directions or relief in respect of it as provided for by the Rules of the Supreme Court 1971 (WA) (RSC) O 36B r 8A and r 8B.[3]
[3] Affidavit of R J Black sworn 17 May 2023, RJB-18 page 79; ts 168 (24 April 2023).
A review of the court record reveals that on 24 February 2023, the plaintiff applied, among other things, for orders concerning the subpoena in the following terms:
1.Christopher G Semmens be summonsed to attend Court at a date and time set by the Court to be examined before a Registrar in connection with the basis of his objection to produce documents and refusal to comply with the subpoena addressed to him and issued 6 December 2022 (Subpoena).
2.Alternatively, to order 1 above, any application for Christopher G Semmens to be committed for his contempt of this Honourable Court by reason of his failure to comply with the subpoena issued 6 December 2022 be filed by 10 March 2023.
On 27 February 2023, Kenneth Martin J ordered that Mr Semmens be summonsed to attend court at a date and time set by the court to be examined before a registrar in connection with the basis of his objection to produce documents and refusal to comply with the subpoena addressed to him and issued 6 December 2022. A summons for examination was issued by the court on 21 March 2023, by which Mr Semmens was ordered to attend court on 24 April 2023 to be examined viva voce (on oath or affirmation) before a registrar. He was examined on that date.[4]
[4] Affidavit of R J Black sworn 17 May 2023 par 12, RJB-18.
After the examination and under cover of a letter dated 1 May 2023, Mr Semmens produced to the court documents falling within the scope of the subpoena. Mr Semmens noted in that letter that some of the documents produced were marked 'Objection to Production', and he described the same as being confidential records relating to his patient. In his letter of 1 May 2023 he further noted:
In relation to the documents marked 'Objection to Production' I request that before these records are made available to any party, consideration be given to the confidential nature of the documents, which arise in the context of professional relationship with my client.
I object to inspection of these documents by any party.
I request that the Subpoena be amended to state:
The documents and things you must produce are as follows:
1.All articles relied upon, documents referred to in, notes or other documents created, in respect of your report dated 21 September 2022.
2.All articles authored by you relating to Posttraumatic Stress Disorder.
As to documents which fall within the description of category 2 of the subpoena (being all articles relied upon, documents referred to in, notes or other documents created, correspondence sent and received, and all drafts, in respect of Mr Semmens' report dated 21 September 2022),[5] Mr Semmens also objects to inspection of 'correspondence sent and received' on the basis that they were documents exchanged by Mr Semmens and the defendant's former solicitors, and such documents are marked confidential and subject to privilege.[6]
[5] The terms of the subpoena are reproduced at [10] above.
[6] Letter from C G Semmens to the Supreme Court of Western Australia dated 1 May 2023 page 3; ts 205 (31 July 2023).
On 28 July 2023, Mr Semmens produced to the court a further bundle of documents in response to the subpoena. He also objects to them being included in the subpoena and to their inspection on the basis that they are confidential. I understand that they are also clinical records falling within the scope of category 1 of the subpoena.
Note 6 to the subpoena provides that if the recipient produces more than one document or thing, the recipient must include with them a list of them. Contrary to that instruction, Mr Semmens has produced a large number of documents without a list.
In the letter of 1 May 2023, Mr Semmens sets out over two pages submissions in support of his objection. Mr Semmens' letter of 1 May 2023 was accepted for filing as a request made pursuant to the RSC O 36B r 8B for relief with respect to the subpoena issued by the court on 6 December 2022 pursuant to the RSC O 36B r 8A(2).
In these reasons, reference to 'the subpoena' is a reference to the subpoena to produce issued by the court on 6 December 2022 to Mr Semmens which was returnable on 11 January 2023; and reference to 'the subpoena application' is a reference to the application made by Mr Semmens by his letter dated 1 May 2023.
At the hearing of the subpoena application today, Mr Semmens also made oral submissions and presented a document in which he further explained the basis for his objection. The written and oral submissions made by Mr Semmens today expand upon the submissions made in his letter of 1 May 2023.
In considering the subpoena application, I am also cognisant that by an application filed on 31 July 2020, the plaintiff has applied for:
(a) a declaration pursuant to the RSC O 70 r 1 that the defendant is a person incapable of managing her affairs in respect of this proceeding; and
(b) an order that the Public Trustee be appointed as the defendant's guardian ad litem to conduct the proceeding on behalf of the defendant,
(the guardian ad litem application).
Although the guardian ad litem application was filed in July 2020, it is still to be finally determined. I understand that the plaintiff says that this is primarily due to:[7]
(a) the limited availability of the defendant;
(b) the court's decision made 18 June 2021 to appoint the Public Advocate to investigate whether the defendant is in need of a guardian or administrator, the court indicating on 16 March 2022 that it accepted that the Public Advocate had sought, but failed to obtain, any medical information from the defendant; and
(c) the plaintiff not pursuing the application over the period 14 June 2022 to 10 January 2023, during which period the defendant was represented by solicitors and counsel, and subsequently by senior counsel acting pro bono.
[7] Plaintiff's submissions filed on 22 May 2023 in support of the guardian ad litem application; ts 213 (31 July 2023).
In February 2023, the plaintiff sought to have the guardian ad litem application listed for hearing, and programming orders were made by Kenneth Martin J on 27 February 2023.

Listing of the subpoena application

The subpoena application was listed for hearing today.
I note that by a facsimile communication received on 25 July 2023, the defendant informed the court that she required the hearing of the subpoena application to be vacated so that she might attend and be heard, as the listing had not taken into account her availability in circumstances where she had in March provided her unavailable dates to the plaintiff's representatives for the purposes of listing the guardian ad litem application. (The guardian ad litem application is opposed by the defendant and is listed for hearing on Wednesday, 16 August 2023, which listing was fixed taking into account the defendant's unavailable dates.)
I understand that various communications were sent to the defendant in the months prior to the hearing on 31 July 2023 concerning the listing of the subpoena application. Despite the defendant's late objection to the hearing date, she did attend court today and has been heard.

Overview of the parties' submissions

Mr Semmens' position

Mr Semmens has now produced documents in response to the subpoena in two tranches. In summary, he maintains that the terms of the subpoena should be varied, and opposes inspection of documents save for those that fall within the following description:[8]
1.All articles relied upon, documents referred to in, notes or other documents created, in respect of [Mr Semmens'] report dated 21 September 2022.
2.All articles authored by [Mr Semmens] relating to Posttraumatic Stress Disorder.
[8] The subpoena application dated 1 May 2023; written submissions of Mr Semmens relied upon on 31 July 2023.
As to production and/or inspection of 'correspondence sent and received' falling within category 2 of the subpoena,[9] on the basis that such documents are marked as being confidential and subject to privilege, Mr Semmens objects to their inspection but does not seek to develop the objection, content to leave the question of whether they ought be protected by privilege to the court.[10]
[9] The terms of the subpoena are reproduced at [10] above.
[10] ts 206 - 207 (31 July 2023).
Mr Semmens says that his primary concern and objection is not focussed on categories 2 and 3 of the subpoena, but rather concerns the documents he has produced which relate to the defendant, which include all notes, records and correspondence about, with, or relating to, the defendant (described in these reasons as clinical records). In summary, Mr Semmens says that the court ought have regard to the importance of confidentiality and trust in the relationship between a clinical psychologist and patient, particularly in a context where the patient has experienced sexual abuse; and to the public interest in ensuring psychologist/patient confidentiality and trust in such a context before allowing inspection of the clinical records.[11]
[11] Subpoena application 1 May 2023 pages 1 - 2; written submissions of Mr Semmens relied upon on 31 July 2023 pages 1 - 2.
He further refers to the Australian Psychological Society's Code of Ethics (Code), and submits that he is subject to the Code and ethically obliged to maintain confidentiality.
As to the Code, he says that disclosure under the Code is only allowed in limited circumstances, which include where there is a legal obligation to disclose. Further, he says that the Code provides that where a standard of the Code allows psychologists to disclose information obtained in the course of the provision of psychological services, disclosure is to be only that information which is necessary to achieve the purpose of the disclosure, and then only to the people required to have that information. He submits that in this case, the purpose of disclosure has not been specified, and therefore the disclosure cannot be said to be necessary to achieve a proper purpose. He further says that it would be improper to allow disclosure to facilitate a 'fishing expedition' on the part of the plaintiff, supported only by conjecture.[12]
[12] Subpoena application dated 1 May 2023 page 2; written submissions of Mr Semmens relied upon on 31 July 2023 page 2.
Mr Semmens also refers to the protection provisions in the Evidence Act 1906 (WA),[13] and submits that regard should be had to the same in the disposition of the subpoena application. Among other things, he submits that disclosure of the contents of a psychological file may set off a chain of enquiry that effectively undermines the protection that the Evidence Act might otherwise provide.

The defendant's position

[13] Written submissions of Mr Semmens relied upon on 31 July 2023 page 3; Evidence Act, s 20A-F. Mr Semmens had initially referenced the Evidence and Public Interest Disclosure Amendment Legislation Bill 2011, by which the Evidence Act was amended (among other things) to insert s 20A to s 20M.

The defendant submits that the subpoena ought never have been issued. I understand the defendant to submit that until the court establishes its jurisdiction (and the appeals that will follow in relation to the court's jurisdiction are determined), the whole of the action should be stayed.[14]
[14] ts 198 (31 July 2023).

I also understand the defendant to complain that her consent had not been sought nor obtained before Mr Semmens produced documents to the court; that the court did not have the power to subpoena production of documents from her treating psychologist (which treatment was funded by the Department of Justice as she was a victim of crime); that she would suffer significant harm if the documents remained in the possession of the court and were inspected; and that the subpoena was contrary to the public interest.[15]

The plaintiff's position

[15] ts 201, 202, 220 - 221 (31 July 2023).

The plaintiff says that the subpoena was proper in light of the defendant's pleaded defence and counterclaim; the defendant having filed the report of Mr Semmens dated 21 September 2022 after leave was granted to the parties to adduce expert evidence at trial (suggesting an intention on the part of the defendant to seek to rely on the evidence of Mr Semmens as an expert at trial); and the contents of Mr Semmens' report, particularly those based on Mr Semmens' clinical observations of the defendant.[16]
[16] ts 207 - 209 (31 July 2023).
While counsel for the plaintiff foreshadows objection being taken to Mr Semmens' report at trial because, among other things, Mr Semmens failed to disclose the reasons which ground his opinions, counsel says that the plaintiff's application is prosecuted on the basis that Mr Semmens' report appears (by having been filed in the action) intended to be relied upon by the defendant at trial.[17] Counsel submits that in this context, there is nothing improper in seeking to have Mr Semmens produce the records of his experience of the defendant, so that the opinion expressed in his report might be assessed. The plaintiff says that it follows that there is a legitimate forensic purpose for the subpoena.[18]
[17] ts 207 (31 July 2023).
[18] ts 207 - 209, 218 (31 July 2023).
The plaintiff says that the documents subpoenaed have apparent relevance to the litigation, and in circumstances where Mr Semmens' report was filed on behalf of the defendant and the issue of the defendant's suffering from post‑traumatic stress disorder has been put in issue by her pleaded defence and counterclaim, the court's discretion ought be exercised in favour of allowing inspection of the documents produced by Mr Semmens.[19]
[19] ts 210 (31 July 2023).
The plaintiff seeks that the subpoena application be determined before the guardian ad litem application, as the documents produced by Mr Semmens may be relevant to that application.
Counsel described the principles to be applied in determining an objection to inspection on the basis of confidentiality.[20]
[20] ts 210 (31 July 2023), referring to Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498; see [50] ‑ [55] below for overview of applicable principles.
As to the protection provisions of the Evidence Act, the plaintiff accepts that Mr Semmens is a 'confidant' and the defendant is a 'protected confider' as defined in s 20A of the Evidence Act. The plaintiff also notes that s 20C concerns a direction that may be given in relation to whether evidence is adduced in a proceeding. Further, the plaintiff accepts that the protection provisions of the Evidence Act, particularly s 20C, are relevant to the exercise of the court's discretion whether or not to grant access to documents produced on subpoena, as the plaintiff accepts that it would generally be inappropriate to grant access to the documents in question if the court were likely to make a s 20C direction that evidence not be adduced at the hearing.[21]
[21] ts 210 - 211, 215 (31 July 2023), counsel referring to the Evidence Act 1906 (WA); Evidence Act 1995 (NSW) pt 3.10, div 1A; the Evidence and Public Interest Disclosure Bill 2011 Explanatory Memorandum; and Director-General Department of Community Services v D [2006] NSWSC 827; (2006) 66 NSWLR 582.
While acknowledging the same, it is the plaintiff's position that the critical aspect of the balance, being the potential for harm to the defendant, is not supported by any evidence but only conjecture,[22] and in all of the circumstances, discretion ought now be exercised to dismiss the subpoena application and allow inspection of all documents produced by Mr Semmens pursuant to the subpoena.
[22] ts 211, 214 (31 July 2023).
Counsel for the plaintiff further submitted that the plaintiff should be entitled to inspect documents which contain the information said to ground a report that the defendant's own counsel filed in the action and provided to the plaintiff; and that the plaintiff would suffer prejudice if this application was adjourned as the plaintiff would be deprived of the use of the documents for the purposes of the hearing of the guardian ad litem application on 16 August 2023, in a context where this action has been on foot for 10 years.[23]
[23] ts 213 - 215 (31 July 2023).

Disposition

Jurisdiction

At the commencement of the hearing, in response to the defendant's submission that the court's jurisdiction must be established, I indicated that I am satisfied that I have jurisdiction to hear Mr Semmens' application.
I noted that the subpoena was issued in an action commenced by the plaintiff against the defendant in 2013, which in short, is a recovery action by which the plaintiff seeks to recover money alleged advanced under a Loan Agreement (as defined in the plaintiff's current pleading) and alleged to be due to it by the defendant, together with an order for possession of a property mortgaged by the defendant in favour of the plaintiff as security for the money advanced. The action is defended and a counterclaim is pressed. Among other things, the defendant pleads that the Loan Agreement is void as unconscionable in equity or pursuant to ss 12CA and 12CB of the Australian Securities and Investments Commission Act 2001 (Cth); and that the plaintiff is not entitled to enforce its terms. The defendant denies that the plaintiff is entitled to the claimed relief or any relief at all and by her counterclaim seeks a declaration that the Loan Agreement is void and unenforceable; and an order that the plaintiff discharge the mortgage over the remaining mortgaged property.
As I indicated when jurisdiction was raised by the defendant at the commencement of the hearing, I am satisfied that the court has jurisdiction under the Supreme Court Act to hear and determine the action as pleaded on behalf of the plaintiff and the defence and counterclaim as pleaded on behalf of the defendant. Indeed, the defendant seeks through her counterclaim that the court make orders in her favour and, in that respect, since 2013 the defendant has submitted to the court's jurisdiction.
I am also satisfied that the court has the power to issue subpoenas in this action, and to determine any application that concerns such a subpoena. Under s 167(1) of the Supreme Court Act the judges of the court are empowered to make rules of court for purposes which include regulating and prescribing the procedure and the practice to be followed in respect of subpoenas to produce documents issued to non‑parties.[24] The court's jurisdiction in relation to subpoenas is governed, in part, by the RSC O 36B r 8A(2) which provides that:
On a request by the addressee, a party or any other person with a sufficient interest, the Court may, by order -
(a) set aside a subpoena or part of it; or
(b) make or vary directions in relation to removing from and returning to the Court, and the inspection, copying and disposal, of any document or thing that has been or is to be produced under it; or
(c) grant other relief in respect of it.
[24] Supreme Court Act s 137(1)(oa).
Further, it is clear that the court is able to set aside a subpoena in the exercise of its inherent jurisdiction. It is well established that a subpoena may be set aside where it does not serve a legitimate forensic purpose, where it is oppressive or is otherwise an abuse of process.[25]

Overview - applicable principles

[25] Jensen v Nationwide News Pty Ltd [No 6] [2018] WASC 415 [25] - [26], [46].

While I accept that the subpoena was issued by order of the court, the determination of whether inspection of documents produced on subpoena should be permitted is separate from the question of whether to grant leave to issue the subpoena.[26] The court has a discretion as to whether and to what extent access to documents produced on subpoena is to be granted.
[26] Boase v Axis International Management Pty Ltd [No 3] [17], citing National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372, 381; Apache Northwest Pty Ltd v Western Power Corporation [1998] WASCA 127; (1998) 19 WAR 350, 371; and Stanley v Layne Christensen Co [2004] WASCA 50 [11] - [13].
Mr Semmens presses his objection on the basis of confidentiality, grounded in his therapeutic relationship with the defendant. He also objects to the production of a sub-set of the documents on the basis of legal professional privilege.[27]
[27] As noted at [17] and [30] above.
As to the objection on the basis of confidentiality, as was observed by Beech J in Boase v Axis International Management Pty Ltd [No 3] at [20]:
Confidentiality is not of itself a ground to refuse inspection of an apparently relevant document. In the end, the public interest in the administration of justice prevails over the interest in confidentiality of the information: Apache Northwest Pty Ltd (379); Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, 38. However, confidentiality can be taken into account, together with any assessment of the extent of the document's apparent relevance, in the exercise of discretion whether to permit inspection: Apache Northwest Pty Ltd (380 - 381).
As to relevance, as observed by Beech J, the question is whether the documents, or the passages to which objection is taken, have apparent relevance to the litigation, which is a low threshold. It is enough to establish apparent relevance if a document or class of documents gives rise to a line of enquiry relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross‑examination.[28]
[28] Boase v Axis International Management Pty Ltd [No 3] [10] - [11], citing Apache Northwest Pty Ltd v Western Power Corporation (374); Stanley v Layne Christensen Co [9]; and Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [18].
I proceed on the basis that whether inspection is allowed is not to be determined on an all or nothing basis. Rather, it is necessary for the court, in exercising its broad discretion, to make an assessment of the extent of the relevance of a document to the case, any private interests of persons affected by the subpoena (including issues of confidentiality), and any issues of public interest. The public interest in the administration of justice has been described as being the ultimate touchstone.[29]
[29] Jensen v Nationwide News Pty Ltd [No 6] [51].
I also proceed on the basis that the protection provisions of the Evidence Act, particularly s 20C, are relevant to the exercise of the court's discretion whether or not to grant access to documents produced on subpoena, accepting that it would generally be inappropriate to grant access to the documents in question, if the court were likely to make a s 20C direction at the hearing.[30]

The present case

[30] Director-General Department of Community Services v D [17], which concerned the protection provisions contained in the Evidence Act 1995 (NSW), relevantly s 126B (Exclusion of evidence of protected confidences), noting that the professional confidential relationship provisions in the Evidence Act 1906 (WA) are modelled on pt 3.10, div 1A of the Evidence Act 1995 (NSW): see page 1, Explanatory Memorandum, Evidence and Public Interest Disclosure Bill 2011 (WA).

The scope of the subpoena is broad. It requires production by Mr Semmens of all documents relating to the defendant. Having now produced documents pursuant to the subpoena, Mr Semmens by his application seeks relief.
I accept that the subpoena serves a legitimate forensic purpose, and is not peripheral to the decisive issues for trial. Having now produced the documents, I do not consider the subpoena to be oppressive, giving rise to a compelling basis for the scope of the subpoena to now be varied. In the circumstances, an abuse of process is not made out. I do not consider there to be a proper basis to vary the subpoena as pressed by Mr Semmens, or set it aside in its entirety as submitted by the defendant.
As to whether the clinical records now produced by Mr Semmens ought be inspected, I accept that the defendant has a sufficient interest in the documents subpoenaed that entitles her to be heard in relation to inspection of them. This is not disputed by counsel for the plaintiff.[31]
[31] ts 211 - 212 (31 July 2023); see the RSC O36B r 8A(2).
While I am cognisant that the defendant has not been proactive in relation to making any request pursuant to the RSC O 36B r 8A(2), or objecting to inspection of the documents produced by Mr Semmens before today, I note that she has not been represented in the proceeding since the beginning of this calendar year.
As a matter of procedural fairness, I consider it would be appropriate in the ordinary course that the defendant (or any guardian or legal representative engaged on her behalf) have an opportunity (should the defendant wish to take it) to inspect the clinical records; to make submissions as to confidentiality including by reference to the considerations which inform s 20C of the Evidence Act; and to make submissions as to the extent of the documents' apparent relevance, which submissions can then be weighed in the balance in the exercise of the court's discretion whether to permit inspection of the clinical records. She ought also be afforded the opportunity to adduce evidence that informs the exercise of the court's discretion with respect to the clinical records, including as to the likelihood of harm should inspection be allowed.
In all of the circumstances and so that apparent relevance may be weighed as against all other relevant considerations in the exercise of discretion, it may also be appropriate that the court review the clinical records.
Determining the subpoena application is also complicated by the context in which the subpoena application is made.
In circumstances where the plaintiff seeks a declaration in the guardian ad litem application pursuant to the RSC O 70 r 1 that the defendant is a person incapable of managing her affairs in respect of this proceeding, I asked the parties to address me as to whether it would be appropriate that the subpoena application be determined before the question of the defendant's capacity is determined.
The plaintiff opposes adjournment, noting among other things that the plaintiff seeks inspection of the clinical records as they may be relevant to the disposition of the guardian ad litem application. I weighed the prejudice to the plaintiff in the balance.
However, I was cognisant that inspection of the clinical records is not sought solely for the purposes of the guardian ad litem application, and has a legitimate forensic purpose for trial.[32]
[32] ts 209 - 210 (31 July 2023).
I have weighed in the balance that a review of the court's file reveals that the plaintiff intends to read nine affidavits in support of the guardian ad litem application.[33] The evidence that appears intended to be read includes (but is not limited to) copies of documents relating to the defendant's mental and physical health for the period commencing 9 June 2010 to July 2020 which were provided to the plaintiff in the course of the proceeding; the report of Dr Daniel Shub, a psychiatrist, dated 21 December 2020, in which Dr Shub provides his psychiatric opinion as to the defendant's capacity to manage legal proceedings; Dr Shub's subsequent reports dated 19 May 2022 and 17 April 2023; and Mr Semmens' report dated 21 September 2022. That is, there appears to be other evidence available to the plaintiff beyond that which might be found in Mr Semmens' clinical records. Counsel for the plaintiff described it as an abundance of evidence.[34]
[33] Plaintiff's further supplementary submissions filed 22 May 2023 par 5.
[34] ts 214 (31 July 2023).
I also note that it is not presently possible to discern whether the clinical records subpoenaed (or information contained therein) have already been provided to the plaintiff by the defendant.
On the materials filed, I do not understand the defendant to seek to make forensic use of Mr Semmens' report in her opposition to the guardian ad litem application, such that proper scrutiny of his report requires that the source material on which he relied be available for the purposes of that hearing at the instigation of the defendant.
I have considered whether the defendant's interests might sufficiently be represented today by the advocacy of Mr Semmens. I am not. Mr Semmens is not represented in the hearing of the subpoena application. While he has expressed concern as to the harm that might be caused to the therapeutic relationship with the defendant should inspection be allowed, no evidence of the same is before me. As was observed by counsel for the plaintiff, there is conjecture only. Further, the pleadings inform what is apparently relevant to the case and Mr Semmens is not in a position to address the same.
I am concerned that if the defendant is found on 16 August 2023 to be a person incapable of managing her affairs in respect of this proceeding, her interests will not have been adequately protected by her being heard in person today in relation to inspection of the clinical records, nor by the court proceeding on the basis that Mr Semmens' submissions will be sufficient to represent the defendant's interests in regard to the same.
I am cognisant that if the plaintiff is allowed to inspect the clinical records, any inappropriate disclosure will not be able to be made right. This weighs heavily against proceeding today in respect of the clinical records. On balance, I therefore consider it proper that determination of whether the plaintiff ought inspect the clinical records await the determination of the guardian ad litem application.
In circumstances where the clinical records are sought to be inspected, there are public interest considerations that ought be weighed in the balance, together with the defendant's individual interests which include the potential for harm, which support caution now being exercised.
However, as I have noted, Mr Semmens does not object to inspection of the articles that he relied upon; the documents referred to in, notes or other documents created, in respect of his report dated 21 September 2022; nor the articles authored by Mr Semmens relating to post‑traumatic stress disorder. His objection to categories 2 and 3 of the subpoena was limited to that sub-set of documents exchanged by him and the defendant's former solicitors which are marked confidential and subject to legal professional privilege. Counsel for the plaintiff accepted that correspondence as between Mr Semmens and the defendant's former representatives might arguably be subject to privilege, and I understood the plaintiff did not press for inspection of the same.[35]
[35] ts 219 (31 July 2023).
There is no cogent basis for there to be any proper objection for inspection of the category 2 and 3 documents (excluding that sub-set of documents exchanged between Mr Semmens and the defendant's former solicitors marked confidential and subject to legal professional privilege) and to the extent that they have not yet been inspected by the plaintiff, it would appear that they ought now be released for inspection. In circumstances where no list of documents has been made in relation to the documents now produced by Mr Semmens, Mr Semmens ought remain in court this afternoon to identify such documents, and the court will review the same. I will relist the matter should upon my review of the documents they appear to potentially ground a basis for objection to inspection.

Conclusion and orders

For these reasons, with respect to the clinical records, the hearing of the subpoena application will be adjourned to a date to be fixed following the guardian ad litem application, with costs reserved. The documents identified as being communications between Mr Semmens and the defendant's former solicitors marked confidential and subject to legal professional privilege will not be made available for inspection; and the parties and Mr Semmens will be advised (after my review) as to whether the other category 2 and 3 documents may be inspected.
Finally, I note that in the course of the hearing submissions were made by the defendant critical of Mr Semmens having produced documents to the court in response to the subpoena absent her consent; and to the appearance of senior counsel on behalf of the plaintiff today. It is appropriate for the defendant's benefit to record here that that by operation of the subpoena, Mr Semmens was ordered to produce documents falling within the scope of the subpoena to the court; and the plaintiff was entitled to be represented by senior counsel in respect of this proceeding, including the hearing of the subpoena application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RW
Associate to the Honourable Justice Strk
11 AUGUST 2023