Staker v Kemp - [2018] VSC 367

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MILDURA

COMMON LAW DIVISION

CIVIL CIRCUIT LIST

S CI 2016 04420

JESSE STAKER	Plaintiff
v
RALPH KEMP & ORS (according to the attached schedule)	Defendants

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JUDGE:	JUDICIAL REGISTRAR CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2018
DATE OF JUDGMENT:	4 July 2018
CASE MAY BE CITED AS:	Staker v Kemp & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 367

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PRACTICE AND PROCEDURE – Subpoena to treating psychologist in personal injury claim - Records disclose allegations of sexual abuse – Sexual abuse not the subject of proceeding but relevant to psychiatric impairment claimed – Whether psychologist records are ‘confidential communications’ pursuant to Evidence (Miscellaneous Provisions) Act 1958 Div 2A– Whether leave to issue subpoena required - KR v BR & Anor [2018] VSCA 159, R v Lyons [2018] VSC 256.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendants	Mr Ajzensztat	Norris Coates
The Objector, Ms Newman, appeared on her own behalf

JUDICIAL REGISTRAR CLAYTON:

Introduction

The first and second defendants, Ralph and Debra Kemp, are the owners of a property at 6 Delta Court, Mildura. The third defendant, John Kemp, leased the property from them and lived in the property with the plaintiff’s sister, Krystle Staker.

The plaintiff, Mr Staker, alleges that on 16 November 2013 John Kemp asked him to help move some furniture. In the course of moving a TV cabinet, Mr Staker says he suffered an injury. In addition to his back injury which required surgery, Mr Staker claims psychological injury, depression and anxiety.

Mr Staker alleges that his injuries arose as a result of the negligence of the three defendants.

On 1 March 2018 the defendants filed a subpoena to Merbein Family Medical Practice seeking ‘all your file and clinical notes relating to Mr Jesse Staker’.

Mr Staker’s lawyers were notified of this subpoena and no objection was taken.

Among the documents subpoenaed from Merbein Family Medical Practice was a letter from Ms Rebecca Newman, registered psychologist, to Dr Phillis Jebron dated 10 September 2014. In that letter Ms Newman noted that Mr Staker had attended three sessions with her and that his case had ‘been suspended due to non-attendance to the last three scheduled appointments’. She then set out a clinical summary which detailed her assessment of Mr Staker and her recommendations. She refers to a ‘background marked by significant trauma and grief and loss’. She recommends that Mr Staker continue counselling and notes that ‘as he is a victim of crime under NSW jurisdiction he may be eligible to access counselling under Victims of Crime NSW’. She also notes that he had a problem with his back ‘which is under control with medication, stretching, massage and reported to commence physiotherapy’.

There is no mention in this letter of any sexual abuse suffered by Mr Staker.

On 4 May 2018 Mr Staker’s lawyers served a report of Dr David Weissman, a consultant psychiatrist who assessed Mr Staker for…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Staker v Kemp

Details

AGLC: Staker v Kemp [2018] VSC 367
Case: [2018] VSC 367
Decision Date: 4 July 2018

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Staker v Kemp was heard. The dispute involves a subpoena issued to a treating psychologist in a personal injury claim, where the records of the psychologist disclose allegations of sexual abuse. The sexual abuse is not the primary subject of the proceeding but is relevant to the psychiatric impairment claimed by the plaintiff. The court was required to decide whether the psychologist's records are considered 'confidential communications' under the Evidence (Miscellaneous Provisions) Act 1958, and if so, whether leave was required to issue the subpoena. This issue was guided by the cases of KR v BR & Anor and R v Lyons.

The court considered the definition of 'confidential communication' and whether the psychologist-patient relationship falls within this definition. The court also examined the relevance of the alleged sexual abuse to the psychiatric impairment claim and whether the disclosure of these records would breach the confidential nature of the communications. The court held that the psychologist's records, which contained the allegations of sexual abuse, were indeed confidential communications protected under the Evidence (Miscellaneous Provisions) Act 1958. Consequently, the court determined that leave was required to issue the subpoena, as it would compel the disclosure of these confidential communications.

The court granted leave to issue the subpoena, subject to certain conditions to protect the confidentiality of the communications. These conditions included restrictions on the use of the records and the information contained within them, as well as provisions for the return or destruction of the records once they were no longer needed for the proceeding. The court's decision ensured that the plaintiff's right to access relevant evidence was balanced with the protection of the confidential communications made between the psychologist and the patient.

Orders