Semi v Victorian WorkCover Authority (Ruling)

[2022] VCC 714

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-05561

SEYRA SEMI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGE:	JUDICIAL REGISTRAR B BALES
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2022
DATE OF RULING:	27 May 2022
CASE MAY BE CITED AS:	Semi v Victorian WorkCover Authority (Ruling)
MEDIUM NEUTRAL CITATION:	[2022] VCC 714

RULING
---

Subject:PRACTICE AND PROCEDURE

Catchwords:              Subpoena to produce documents – whether legitimate forensic purpose established – whether the defendant has engaged in a “fishing expedition”

Legislation Cited:      County Court Civil Procedure Rules 2018; Civil Procedure Act 2010; Workplace Injury Rehabilitation and Compensation Act 2013, s335

Cases Cited:Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC 0003; Whioke v Baytech Traders Pty Ltd [2020] VMC 13; Thomas v Camec [2020] VMC 16; Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573; Petkovski v Galletti [1994] 1 VR 436

Ruling:  Plaintiff’s objection to the Medicare subpoena is upheld and the subpoena is set aside.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J J Fitzpatrick	Slater and Gordon Ltd Lawyers
For the Defendant	Ms V C McLeod	Russell Kennedy

JUDICIAL REGISTRAR:

The Proceeding

1The plaintiff issued proceedings on 21 December 2021 by Originating Motion seeking an order pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 granting leave to issue common law proceedings for the recovery of damages in respect of injuries sustained by the plaintiff in the course of her employment.

2The plaintiff was employed by Arcare Aged Care facility between 30 June 2014 and 31 August 2015 and claims a lumbar spine injury, along with a psychological  injury.

3The proceeding is listed for hearing on 28 July 2022 with an estimate of one day.

4The defendant’s solicitor issued a Form 42AA Subpoena for Production to the Registrar.  The plaintiff has objected to that subpoena.

The Subpoena

5The subpoena was issued on 7 March 2022 to Medicare Australia (“the Medicare subpoena”) and the schedule of documents required the production of the following:

“All documents, files and electronic records in relation to the Medicare claims history and pharmaceutical benefits scheme claims information for the Plaintiff Seyra Semi … including but not limited to a statement of benefits for the period 01 January 2001 to date.”

6The date of production for the subpoenaed documents was 28 March 2022.

7By correspondence to the Court dated 23 March 2022, the plaintiff objected to the subpoena pursuant to Order 42A.08(1) of the County Court Civil Procedure Rules 2018, on the basis of relevance and on the basis that the subpoena constitutes “fishing”. Additionally, the scope of the subpoena is unreasonably wide and oppressive and there is a failure to identify expressly and precisely the legitimate forensic purpose to permit access to the plaintiff’s Medicare and Pharmaceutical Benefits Scheme claims history for a period of twenty-one years to date and fourteen years before the workplace injury.

8It is noted, at the time the objection hearing was conducted, the documents had been produced to the Registrar, however, I have not examined those documents.

9The objections hearing was listed before me on 13 April 2022.

Evidence and submissions

10The plaintiff filed an affidavit in support of the objection affirmed by Nimna Rupasinghe, lawyer, of Slater and Gordon Ltd on 8 April 2022.

11The defendant filed an affidavit sworn by Tanya Bloom, special counsel, of Russell Kennedy Lawyers on 12 April 2022, including a volume of attachments, notably the plaintiff’s affidavit in relation to her claim and the Mill Park Super Clinic complete record.

12In oral submissions, the plaintiff outlined the principles I should rely on in the authorities[1] to determine the objection and says the scope of the subpoena is an extraordinarily wide period and does not clearly identify what the precise legitimate forensic purpose is and that the defendant has to show there is something on the cards that is likely to materially assist the defendant.  In the plaintiff’s view, the defendant is essentially on a “fishing expedition” and that they are casting a net very wide to see if they can find something in those records.

[1]Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC; Whioke v Baytech Traders Pty Ltd [2020] VMC 13; Thomas v Camec [2020] VMC 16

13The plaintiff concedes that the plaintiff’s affidavit, along with the Mill Park Super Clinic records, reveal key entries where the plaintiff complains about the injury, the subject of this claim, and the treating doctor notes two other complaints of back pain that predate the injury.

14However, the plaintiff suggests this is not a proper basis for the Medicare subpoena to include a period of twenty years. The plaintiff submits she mentions the aches and pains she had in 2013 and 2015 but that there is no evidence she had a previous injury at all and that the search is merely a “fishing expedition”.  That the defendant would like to “see” if any treaters exist, and that there is no basis for believing or even suspecting on a reasonable basis that there are other treaters or a previous injury.  The relevance of a document does not substantiate a legitimate forensic purpose and there is no legitimate forensic purpose in obtaining documents to “see” if they are relevant.

15The plaintiff outlined to the Court that her complaint is not one of aggravation but a pristine injury and that an aggravation case is not constituted by a few aches and pains.

The Defendant’s submissions

16The defendant agrees with the plaintiff in respect to the principles outlined in the authorities and refers me specifically to Volunteer Fire Brigades Victoria Inc v Country Fire Authority (Discovery Ruling).[2]

[2] [2016] VSC 573

17The defendant relies on the entries in the Mill Park Super Clinic notes and the plaintiff’s affidavit where she says she worked in the industry for eleven plus years before working with Arcare and highlights that when she turned eighteen years of age, she effectively started work in the industry.

18It was noted that where a serious injury application includes a pre-existing injury, it becomes an aggravation injury and that the subpoenaed material will make it clear whether it is an aggravation case or a pristine injury.[3]  That there is legitimate forensic purpose and they can establish it is on the cards it will materially assist the defendant’s case, relying on the Mill Park Super Clinic records and the plaintiff’s affidavit as outlined.

[3]Petkovski v Galletti [1994] 1 VR 436

19The defendant is of the view that the subpoena will illuminate what treatment she has had and what medical professionals she has consulted for this.

Conclusions

20It is clear from the authorities that the defendant is required to establish expressly and precisely a legitimate forensic purpose for which access to the documents is sought and that it is on the cards, or that there is a reasonable possibility that the material provided in accordance with the subpoena will materially assist the defence.  There is no legitimate forensic purpose if the subpoena is a “fishing expedition” or if the defendant is seeking to obtain documents to see whether they may be of relevance or assistance in its defence.  Relevance alone will not substantiate a legitimate forensic purpose.

21It is remarkable that the defendant seeks to explore a significant period between 2001 to date, which spans a twenty-year period, without any basis or evidence to suggest the plaintiff complained of a specific injury or consulted a doctor for an injury or sought medication or a specialist referral in relation to an injury, other than the entries noted in the Mill Park Super Clinic records and what the plaintiff suggests are general aches and pains. The period between 2001 to date, in my view, is too broad and excessive and demonstrates to me that the defendant is merely acting on a suspicion and that the defendant is searching for something or some information.

22There are no follow up ‘Actions’ or ‘Management’ noted in the Mill Park Super Clinic records and so nothing to support the suggestion the plaintiff did see another practitioner or had some other treatment.

23I note the defendant has utilised the Form D medical authority to request and obtain the medical files and records of six medical/health service providers that have treated the plaintiff.

24I also note the plaintiff has attended the Mill Park Super Clinic consistently since 2009.

25It is not clear whether the two earlier 2013 Mill Park Super Clinic entries predating the plaintiff’s employment period with Arcare, where she complained of back pain, are general back pain or actually relate to another medical condition the treating practitioner was investigating at that time. 

26I am not satisfied it is expressly or precisely established what treatment, if any, the plaintiff sought, and it is speculative at best that there were other doctors involved in her treatment.  It is not apparent by the submissions and evidence before me that it is on the cards that the subpoenaed material will materially assist the defendant as it is unclear what material they are hoping or seeking to find.

27The defendant’s assumptions are seemingly more exploratory and “fishing” for information rather than a reasonable possibility that the material provided in accordance with the subpoena will materially assist the defendant.

28I am not satisfied that the defendant has demonstrated a legitimate forensic purpose for the subpoena and therefore the plaintiff’s objection to the subpoenas is upheld and I make orders that the defendant’s Medicare subpoena in its current form be set aside.

- - -