Stewart v Hames
[2019] WASCA 127
•23 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: STEWART -v- HAMES [2019] WASCA 127
CORAM: MURPHY JA
MITCHELL JA
HEARD: 23 AUGUST 2019
DELIVERED : 23 AUGUST 2019
PUBLISHED : 23 AUGUST 2019
FILE NO/S: CACV 37 of 2019
BETWEEN: DENIS STEWART
Appellant
AND
KIM HAMES
First Respondent
GERALDINE CARLTON
Second Respondent
CHRISTINE CULLEN
Third Respondent
GEOFFREY WILLIAMSON
Fourth Respondent
GORDON SHYMKO
Fifth Respondent
BIJU THOMAS
Sixth Respondent
RAJ SEKHON
Seventh Respondent
DANIELLE VECHIO
Eighth Respondent
SHARON DELAHUNTY
Ninth Respondent
SOUTH METROPOLITAN HEALTH SERVICE
Tenth Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PETRUSA DCJ
File Number : CIV 3131 of 2016
Catchwords:
Practice and procedure - Show cause - Whether ground of appeal has reasonable prospect of succeeding - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 36B r 2
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| First Respondent | : | Mr P E Jarman |
| Second Respondent | : | Mr P E Jarman |
| Third Respondent | : | Mr P E Jarman |
| Fourth Respondent | : | Mr P E Jarman |
| Fifth Respondent | : | Mr P E Jarman |
| Sixth Respondent | : | Mr P E Jarman |
| Seventh Respondent | : | Mr P E Jarman |
| Eighth Respondent | : | Mr P E Jarman |
| Ninth Respondent | : | Mr P E Jarman |
| Tenth Respondent | : | Mr P E Jarman |
Solicitors:
| Appellant | : | In Person |
| First Respondent | : | Sparke Helmore Lawyers |
| Second Respondent | : | Sparke Helmore Lawyers |
| Third Respondent | : | Sparke Helmore Lawyers |
| Fourth Respondent | : | Sparke Helmore Lawyers |
| Fifth Respondent | : | Sparke Helmore Lawyers |
| Sixth Respondent | : | Sparke Helmore Lawyers |
| Seventh Respondent | : | Sparke Helmore Lawyers |
| Eighth Respondent | : | Sparke Helmore Lawyers |
| Ninth Respondent | : | Sparke Helmore Lawyers |
| Tenth Respondent | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
REASONS OF THE COURT:
Introduction
This matter came to a hearing on 23 August 2019 by way of a registrar's notice, dated 2 July 2019, for the appellant to attend to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) on the basis that the ground of appeal has no reasonable prospect of succeeding. We dismissed the appeal on that occasion and said we would provide written reasons. These are our reasons.
Background
The substantive appeal is against the ex tempore decision of Petrusa DCJ on 6 March 2019 (primary decision). Petrusa DCJ dismissed the appellant's appeal against Deputy Registrar Kingsley's decision made on 11 December 2018. Deputy Registrar Kingsley had dismissed the appellant's application to issue subpoenas for an unredacted copy of his medical records.[1]
[1] ts 255, 257, 6 March 2019.
The background to that decision is that the appellant commenced proceedings in the District Court against the respondents. The appellant was a former patient of a unit within Rockingham General Hospital.[2]
[2] Affidavit of Piet Jarman filed 6 August 2019 in the primary proceedings, par 3.
At all material times:
1.The first respondent was the Minister for Health for the State of Western Australia.[3]
2.The second, third, fourth, fifth, sixth, seventh, eighth and ninth respondents were officers of Rockingham General Hospital or the Western Australian Department of Health.[4]
3.The second and third respondents were administrative officers whose only involvement with the appellant had been in processing his request for documents pursuant to the Freedom of Information Act 1992 (WA).[5]
4.The tenth respondent was established as a health service provider for Rockingham General Hospital pursuant to s 32(1)(b) of the Health Services Act 2016 (WA).[6]
[3] Affidavit of Piet Jarman filed 6 August 2019 in the primary proceedings, par 5.
[4] Affidavit of Piet Jarman filed 6 August 2019 in the primary proceedings, par 6.
[5] Affidavit of Piet Jarman filed 6 August 2019 in the primary proceedings, par 7.
[6] Affidavit of Piet Jarman filed 6 August 2019 in the primary proceedings, par 8.
Between August 2016 and September 2018, the appellant filed a number of statements of claim, all of which were struck out in interlocutory decisions of the District Court. The last occasion when the appellant's statement of claim was struck out, prior to the primary decision, was 10 September 2018.
On 26 September 2018, the appellant filed a chamber summons seeking leave to issue a subpoena to the Rockingham Hospital for unredacted copies of his medical records. Prior to this, the appellant had obtained redacted copies of his medical records pursuant to a freedom of information request.
On 11 December 2018, Deputy Registrar Kingsley (1) refused the application to issue the subpoena, and (2) made orders for the filing of a substituted statement of claim by 18 January 2019 and the filing of a defence by 15 February 2019.[7] Deputy Registrar Kingsley ordered that the appellant pay the respondents' costs in any event.[8]
[7] ts 188, 11 December 2018.
[8] ts 190 - 191, 11 December 2018.
On or about 14 December 2018, the appellant appealed from the decision of Deputy Registrar Kingsley and sought an order from the District Court for, in effect, leave to issue the subpoena. Pursuant to r 15(6) of the District Court Rules 2005 (WA), an appeal from a registrar is to be decided afresh or de novo and it was not necessary for the appellant to demonstrate any error of law or principle in Deputy Registrar Kingsley's decision.[9]
[9] ts 255, 6 March 3019.
Order 36B - subpoenas
Order 36B of the Rules of the Supreme Court 1971 (WA) (Rules) provides, relevantly:
Order 36B - Subpoenas
…
2. Issuing subpoenas
(1)The Court may, in any proceeding, by subpoena order the addressee -
(a)to attend to give evidence as directed by the subpoena; or
(b)to produce the subpoena or a copy of it and any document or thing as directed by the subpoena; or
(c)to do both of those things.
…
(2B)An issuing officer must not issue a subpoena to produce -
(a)if it would require the production of a document or thing in the custody of the Court or another court; or
(b)in a proceeding in which a defence is required to be filed, unless -
(i)the defence has been filed; or
(ii)the Court has given leave for the subpoena to be issued; or
(iii)the subpoena is being issued under Order 73 rule 20(2);
or
(c)in a proceeding in which a defence is not required to be filed, unless -
(i)the date and time for production is the date and time of a trial; or
(ii)the Court has given leave for the subpoena to be issued.
(2C)A party may apply for leave under subrule (2B)(b) or (c) without notice to any other party.
(2D)The Court must not give leave under subrule (2B)(b) or (c) unless satisfied there are exceptional circumstances.
Primary decision
On 6 March 2019, Petrusa DCJ heard the appellant's appeal against Registrar Kingsley's decision, and dismissed the appeal.
Her Honour referred to O 36B r 2(2D) and said that she was not satisfied that there were exceptional circumstances. The judge's reasons were as follows:[10]
[10] ts 256 - 257, 6 March 2019.
Mr Stewart commenced his proceedings in this court on 25 August 2016. His writ was accompanied by a statement of claim dated 23 August 2016. Mr Stewart's cause of action relates to events that occurred on 19 September 2013 and to some subsequent events but principally commenced on that date.
An unconditional memorandum of appearance was filed on 5 October 2016 but a defence has not yet been filed. No defence has been filed because there have been no less than three successful applications to strike out Mr Stewart's pleadings. On each occasion orders were made giving him time to file an amended statement of claim.
The most recent amended statement of claim was dated 25 July 2018. This was struck out on 10 August 2018 [sic]. On this day he was given a further 28 days to file an amended statement of claim. Extensions of time have been granted since then and no further statement of claim has been filed to this time.
Mr Stewart submits that the main purpose for issuing the subpoena is to obtain a copy of the names of the hospital staff involved in his treatment on 19 September 2013 so he can join individuals as additional defendants to the actions. The names of these persons are said to have been redacted on the records provided pursuant to his Freedom of Information request.
With the exception of Mr Hames, the first defendant, each of the other persons currently referred to as a defendant in this matter is an employee or agent of the 10th defendant, the South Metropolitan Health Service for whom the 10th defendant is variously [sic] liable.
At this time there is no reason to believe that any other person involved in his care would not also be in that position. Mr Stewart asserts otherwise but there is no evidentiary material before me in support of this and no material has been pointed to at this time.
Given what is currently known about the factual circumstances that Mr Stewart claims gives rise to his cause or causes of action, I am not persuaded that the specific names of the various staff involved is necessary to plead his case. Though it is clear to me that Mr Stewart considers it would be most efficient and desirable from his perspective for them to be named in his pleadings, that is not the case.
To issue the subpoena then in these circumstances would circumvent the ordinary interlocutory process. As the court in Rankilor v City of Perth [2016] WASCA 28 said at paragraph 38:
'It is inappropriate to use a subpoena as a substitute for discovery. There is, by order 26 of the Rules of the Supreme Court 1971, a procedure for discovery of documents by which a party may obtain from the other party documents relating to any matter in issue in the action and if a party is dissatisfied with the extent of discovery made by an opposing party, a procedure by which discovery of particular documents may be sought. The principles to be applied in respect of those procedures are well‑settled. A subpoena to produce documents to the court is intended for a different purpose and is subject to different rules. A subpoena is not a different means by which the purposes of order 26 may be achieved and it is inappropriate to use a subpoena in substitution for an application for discovery or discovery of particular documents. That has long been established.'
And then there are references to a list of cases. For these same reasons it cannot be said that identifying the names of staff at the hospital is a legitimate forensic purpose for the issue of a subpoena. Further, absent a statement of claim the real issues between the parties remain unclear and no other legitimate forensic purpose can otherwise be identified. Given these factors, the appeal is dismissed. (emphasis added)
The judge concluded:[11]
Mr Stewart, the effect of what I've said is I'm not going to give you leave to issue the subpoena. You should make your best endeavours to provide a statement of claim succinctly identifying the causes of action as against each of the parties and where you don't have the name of a person, put in their title or a descriptor, as you've heard us speak about.
You should bear in mind the matters identified by Judge Birmingham at pages 87 and 88 of the transcript and of the other matters raised by Deputy Registrar Kingsley during your appearance on 11 December and you should bear in mind that currently that statement of claim is due on 30 April of this year.
[11] ts 257 - 258, 6 March 2019.
The judge ordered that the appeal to her be dismissed. No orders were made as to the costs of the appeal.
Proceedings in District Court after primary decision
On 20 May 2019, the respondents provided the appellant with their list of documents in the primary proceedings by way of early discovery, including unredacted copies of his medical records from Rockingham Hospital.[12]
[12] Respondents' written submissions in show cause hearing dated 6 August 2019, par 42.
At a directions hearing on 26 July 2019, the appellant advised that he wished to join further defendants to the action. Registrar Kingsley ordered that any application for leave to join additional defendants be brought by 30 August 2019.[13]
[13] ts 268 - 269, 26 July 2019.
There is no current statement of claim filed in the primary proceedings.
The appeal
On 12 March 2019, the appellant filed an appeal notice against the primary decision. After certain extensions of time were granted, the appellant's case was filed on 27 June 2019.
The appellant relies upon one ground of appeal, as follows:
On the grounds to appeal the District Courts cost awarded to the respondents to be reserved because the respondents have yielded to the appellants request to have the medical records un-redacted instead of attending a Supreme court of appeal hearing to appeal the Perth district court's decision to allow the respondents to redact the medical records particulars.
The appellant's submissions had as their focus the argument that, as he had been subsequently given the unredacted copy of the documents, there was no basis upon which he ought to have been the subject of a costs order in relation to his application to issue subpoenas.
Disposition
We dismissed the appeal pursuant to r 43(2)(g)(i) of the Court of Appeal Rules on the basis that (1) insofar as the single ground of appeal purports to challenge an order for costs made by Petrusa DCJ, her Honour did not make such an order, and (2) nothing in the appellant's ground or submissions provides any reasonably arguable basis for interfering with the registrar's costs order in any event. The application to issue subpoenas was heard by the registrar and dismissed on its merits. Costs ordinarily follow the event. The appeal from the registrar's decision was heard on the merits and dismissed, with no order as to costs against the appellant. The subsequent provision of the unredacted documents to the appellant provides no arguable basis for discerning any error in either the registrar's decision or the primary decision of Petrusa DCJ.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CL
Associate to the Honourable Justice Murphy23 AUGUST 2019
359