Styles v Clayton Utz

[2011] NSWSC 1314

Supreme Court

New South Wales

Medium Neutral Citation:

Styles v Clayton Utz [2011] NSWSC 1314

Hearing dates:

28 October 2011

Decision date:

28 October 2011

Before:

Rothman J

Decision:

1. Access to all documents in bundle s 8, including those separated in bundle s 2, be granted to the defendants;

2. Such access will be limited to senior counsel, junior counsel and one solicitor, Ms Anne Knight, and to the extent necessary, one doctor, nominated by the defendants through their counsel.

3. Costs will be costs in the cause.

4. The matter be referred to McCallum J.

Catchwords:

PROCEDURE - civil - an application for access to documents produced, which were separated by the Registry on the basis of objection to production and/or access by the defendant - restricted access granted

Legislation Cited:

Evidence Act 1995
Uniform Civil Procedure Rules 2005

Cases Cited:

Cassanti v Pagalli [2006] NSWSC 160,
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Category:

Procedural and other rulings

Parties:

Bridgette Rebecca Styles (plaintiff)
Joseph J Catanzariti trading as Clayton Uts (defendant)

Representation:

Self represented plaintiff
K. Nomchong (for the defendant)
Freehills (for the defendant)

File Number(s):

2011/66430

Ex Tempore Judgment

1. The matter before the Court is an application for access to documents produced, which were separated by the Registry on the basis of objection to production and/or access by the defendant. The documents are records of medical practitioners.

1. Two bases for objection have been provided. The first is that, on its face, the subpoena does not seek to produce documents that are likely to have a probative value. The second is the provisions of section 126A and 126B of the Evidence Act 1995. I will deal with both of those issues together.

1. The defendants, for their part, submit that given the substantive claim is for personal injury arising from sexual discrimination by an employer and breach of duty, on its face, a subpoena seeking medical records would likely produce documents that have, or would be likely to have, probative value.

1. The defendants further submit that sections 126A and 126B of the Evidence Act do not apply to the production of and access to documents as distinct from applying to their admission into evidence.

1. By operation of the Uniform Civil Procedure Rules 2005 (hereinafter, "UCPR") rule 1.9 and the definitions in schedule 11 of "privileged document" and "privileged information", objections that may be taken to the tendering of a document on the basis of confidentiality contained in sections 126A and 126B of the Evidence Act are objections that may be taken to production of the document.

1. The stage with which the Court is now dealing is access. On one view of UCPR 1.9(3), when read together (as it must be) with the definitions of "privileged document" and "privileged information" (particularly paragraph (b) thereof) the evaluation required by section 126B(3) has no role in the operation of UCPR 1.9. However, UCPR 1.9 incorporates the overriding subjection of the prohibitions…