Tarasova v State of Victoria (subpoena ruling)
[2024] VSC 543
•6 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2023 03428
BETWEEN:
| ALLA TARASOVA | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | Barrett AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 August 2024 |
DATE OF RULING: | 6 September 2024 |
CASE MAY BE CITED AS | Tarasova v State of Victoria (subpoena ruling) |
MEDIUM NETRAL CITATION | [2024] VSC 543 |
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PRACTICE AND PROCEDURE – Subpoenas – Plaintiff claims significant damages for personal injuries as a result of alleged unlawful arrest, false imprisonment, assault and battery, trespass to property and goods and malicious prosecution by police – Alleged injuries include extensive physical and psychological harm – Defendant issued subpoenas to medical practices pursuant to Order 42A, and a Court order, for production of plaintiff’s medical records – Plaintiff seeks to set aside subpoenas on the ground of relevance and on the ground that the subpoenas constitute an illegal interference with privacy contrary to the Health Records Act 2001 (Vic) – And because the defendant ought to have obtained documents pursuant to s 55(2)(a)(ii) of the Civil Procedure Act 2010 (Vic) – Held: the medical records serve a legitimate forensic purpose having regard to the nature of the plaintiff’s claim – Subpoenas are not an illegal interference with privacy, but are an orthodox step in personal injury litigation – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in-person | ||
| For the Defendant | Mr C Roberts, solicitor | Thomson Geer |
TABLE OF CONTENTS
Introduction
Background and Issues
Principles
Consideration
Legitimate Forensic Purpose
Privacy issues under the Health Records Act 2001 (Vic)
Procedural issues
Conclusion
HIS HONOUR:
Introduction
This is an application by the plaintiff to set aside various subpoenas issued by the defendant between 18 December 2023 and 25 January 2024 seeking the plaintiff’s medical records from various medical practitioners and services.
The plaintiff relies on her letters of objection to the Prothonotary dated 23 January 2024 and 15 February 2024, an affidavit sworn by her on 19 August 2024, written submissions filed 20 August 2024 and a statement in support of the objection filed without leave on 24 August 2024. The defendant relies on an affidavit sworn by Mr Cameron Roberts, partner at Thomson Geer, and submissions filed 19 August 2024 and 23 August 2024. I have read and considered the submissions and affidavits and pleadings.
The application was listed for hearing on 20 August 2024. The plaintiff arranged for a translator to be available by audio visual link. The plaintiff speaks some English but is assisted by translation. At the commencement of the hearing the plaintiff said she wanted everything translated. The hearing proceeded on that basis for a while but eventually the plaintiff reverted to addressing the Court directly in English. This proceeding and the events that gave rise to them are obviously matters that cause the plaintiff stress. The course of the hearing became increasingly difficult as a result of the level of the plaintiff’s agitation and her constant interruptions. Ultimately it became impossible to proceed with the hearing of the application orally as the plaintiff would not permit anyone else to speak without constant interruptions. Some of that may have been translation issues, but much of it was clearly the plaintiff’s lack of any inclination to let anyone else speak. I sought to confirm that the plaintiff wished to rely on her written submissions and affidavit in support. I proceed on the basis that that is the material she wishes to rely on, supplemented, insofar as I was able to follow it, her submissions in court. Ultimately I reserved my decision and indicated I would consider all of the matters raised in the affidavits and submissions.
Background and Issues
By her amended Statement of Claim filed on 20 December 2023, the plaintiff seeks damages from the defendant arising out of an incident that occurred on 1 August 2020. On that date, the plaintiff was out in public at a time when lockdown restrictions were in place under the Public Health and Wellbeing Act 2008 (Vic).The plaintiff alleges that the police dealt with her wrongfully, including during her arrest, and as a result she has suffered loss and damage described further below. In its Defence the defendant alleges that the plaintiff failed to comply with lawful directions, failed to give her name and address, was arrested using reasonable force and resisted that arrest.
The plaintiff claims that the police: ‘committed unreasonable acts and applied excessive force that resulted in irreparable damage to the plaintiff’s health’ and that ‘it is a tort claim for damages or other relief within the meaning of s 73 of the Victoria Police Act 2013 (Vic)’. The plaintiff sets out the details of the arrest and alleges the defendant is liable for: unlawful arrest, false imprisonment, assault and battery, trespass to property and goods and malicious prosecution.’
The injuries and harm said to have been suffered as a result of the allegedly wrongful acts of the police are:
(a)‘irreparable damage to the plaintiff’s health’,
(b)‘long-term physical and mental health issues, and has impeded [her] ability to continue occupations and recreational activities,’
(c)‘emotional loss’;
(d)‘physical injury … to her head, neck and back’ that she ‘has suffered headaches [that] ‘resulted from an arachnoid cyst which grew in the brain’s left front lobe after [the officer] hit the plaintiff’s head against the car’;
(e)‘a chronic illness – cervical radiculopathy which is expressed in numbness of both arms and numbness of right fingers [which preclude her from working];
(f)‘lower spine injury [which] has caused numbness in the little toe of the right foot and periodically the whole leg goes numb’;
(g)‘psychological damages, stress and anxiety … panic attacks, post-traumatic stress disorder and depression’;
The particulars of loss and damage claimed include:
(a)$113,000 for past loss of income due to being unable to work;
(b)$980,000 for future loss of income;
(c)$12,000 for past medical expenses;
(d)$25,000 for future medical expenses;
(e)$650,000 for psychological damages;
(f)$550,000 for general damages for pain and suffering, loss of amenities of life and loss of enjoyment of life; and
(g)$150,000 in aggravated and exemplary damages.
It is apparent from the above that the plaintiff claims that the incident caused her significant debilitating physical and psychological injuries for damages which she quantifies at $2,480,000. The defendant denies any wrongdoing and otherwise generally does not admit any injury on the basis of lack of knowledge. It is apparent from the pleadings that the question whether the plaintiff has suffered injury as a result of the incident, and if so to what extent and what are the consequences, are matters that remain live in the proceeding.
The plaintiff has issued subpoenas to:
(a)Services Australia seeking:
Medicare Benefits Scheme Summaries, Pharmaceutical Benefits Scheme Summaries and Notice of Past Benefits for Alla Tarasova, born …
(b)St Kilda South Medical Clinic, Wyndhamvale Health Care, Supernova Medical Centre, and Wyndham Health Care seeking:
Your entire file, including but not limited to all reports, written notes, invoices, diagnostic tests and radiological reports pertaining to Alla Tarasova, born …
Documents have been produced pursuant to four of the subpoenas being: Services Australia, Wyndhamvale Health Care, St Kilda South Medical Clinic and Supernova Medical Centre. Wyndham Health Care has not responded to the subpoena.
On 23 January 2024 and 15 February 2024, the plaintiff notified the Prothonotary of her objections to the subpoenas. The objections include:
(a)the subpoenas are ‘against privacy and illegal’;
(b)the Court did not make any specific disclosure orders under [s 55(2)(a)(ii)] of the Civil Procedure Act [2010 (Vic)];
(c)the information sought is confidential, including because it contains a unique identification number, and production would interfere with her privacy under s 18 of the Health Record Act 2001;
(d)much of the information subpoenaed relates to medical matters not relevant to the proceeding; and
(e)Mr Roberts, legal practitioner and partner at the firm Thomson Geer representing the defendant, is not permitted to participate in the proceeding because he personally has not filed a notice of appearance and overarching obligations certificate and he should be sanctioned pursuant to r 60.03 of the Rules and s 82 of the Health Record Act for breach of the obligation not to ‘by threat, intimidation, or false representation, request or obtain access to health information …’
Principles
The principles in relation to objections to subpoenas are not in dispute and, generally stated, require the party that issued the subpoena to establish that the documents sought serve a legitimate forensic purpose. The principles more specifically have been expressed as follows: [1]
[1]Save for paragraph (b), the submissions of the parties in the case of Woolworths v Svajcer [2013] VSCA 270 (‘Woolworths’), were accepted by the Court at [16] (Nettle, Ashley and Neave JJA).
(a) it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
…
(c) the applicant for the witness summons must also satisfy the court that it is ‘on the cards’, or that there is a ‘reasonable possibility’, that the documents sought under the subpoena ‘will materially assist the defence’.
(d) a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted;
(e) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.
(f) a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied.
(g) in criminal proceedings a ‘more liberal’ view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.
(h) where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.[2]
Consideration
[2]Woolworths (n 1) [16], and see [40]-[46] regarding the Court inspecting subpoenaed documents.
Legitimate Forensic Purpose
The defendant submits that the plaintiff has provided only very limited medical information to date, all of which post-dated the incident, and that there are many gaps in the medical information provided. The defendant submits that the medical records are relevant to the question of the use of excessive force, and will establish whether there are other issues or health conditions impacting the plaintiff’s presentation that require disentanglement and ought to be disregarded for the purposes of assessment of injuries and their consequences.
The defendant also submits that the plaintiff’s medical records must be provided to an independent medico-legal practitioner for the purpose of their examination pursuant to Order 33 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) and that examination and assessment cannot be effectively performed without comprehensive medical records.
The plaintiff’s submissions in relation to relevance, in so far as they can be discerned, appear to be that:
(a)some of the records will be irrelevant;
(b)injury is not a necessary element for trespass, so none of the medical records are relevant;
(c)the only records that are relevant could be in relation to the neck injury because that is the only injury that affects the plaintiff’s ability to work;
(d)the defendant has not admitted the wrongs alleged, so there is no need for medical evidence. If the wrongs are admitted then medical evidence will become relevant.
The defendant raised the application of r 42A.08(2) of the Rules which provides that if a medical file is subpoenaed, the relevant party may inspect the file within seven days and notify the Prothonotary of any specific objections. The rule is as follows:
Objection by party to inspection by other party
...
(2)If a party other than the plaintiff seeks by subpoena the production of any hospital or medical file or record concerning the plaintiff or the plaintiff's condition, the plaintiff may, before taking objection under paragraph (1), inspect the file or record produced to the Prothonotary and notify the Prothonotary thereafter of any objection the plaintiff has to inspection by any other party, provided that the plaintiff makes that inspection and notifies that objection and the grounds of that objection in writing within seven days after the day specified in the subpoena for production of the file or record to the Prothonotary.
Documents have been produced under the Services Australia, Wyndamvale Health Care, St Kilda South Medical Clinic and Supernova Medical Centre subpoenas, but not the Wyndham Health Care subpoena. It seems that the plaintiff has not availed herself of the opportunity to inspect under r 42A.08(2) of the Rules. During the hearing, and having regard to the fact that the plaintiff is self-represented, I attempted to offer the plaintiff the opportunity to inspect the medical records, and file any further objections she may have, with such dispensation from strict compliance with the Rules as may have been necessary. The defendant did not oppose this course. The plaintiff did not listen to or accept this invitation despite several attempts. In the circumstances I indicated that I would inspect the subpoenaed documents consistently with the authority in Woolworths v Svajcer[3] and with a view to ensuring that the plaintiff’s medical records are disclosed only where I am satisfied they serve a legitimate forensic purpose. I note that any such production would be protected by Harman undertakings restricting use to the legal proceeding.[4]
[3]Woolworths (n 1) [40]-[46].
[4]Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320, 332-33 [62] (Adamson J) (‘Lowery’).
Having inspected the subpoenaed documents, I am satisfied that they serve a legitimate forensic purpose. The plaintiff has claimed significant damages as a result of physical and psychological injury that she says was caused by the incident. The extent to which any such injuries have been suffered, and the cause of them and their effect now and into the future are all live issues in the proceeding. The plaintiff’s medical history prior to the incident and treatment since the incident are relevant to those issues, in particular the extent to which the damages claimed have been caused or contributed to by the incident complained of. The plaintiff is wrong to submit that the only relevant medical history is in relation to her alleged injury to her neck. Her claim as described above includes allegations of debilitating physical and psychological injury, beyond just injury to her neck, for which she claims $2,480,000.
It goes without saying that medical histories are personally sensitive and confidential, and it is understandable that the plaintiff does not want them disclosed, but it is not uncommon in personal injuries matters for medical histories to be thoroughly examined. [5] The subpoenaing of relevant documents from third parties is a legitimate aspect of the legal process subject to safeguards of relevance and limitations on use.[6] In Lowery v Insurance Australia Ltd, Adamson J discussed the availability of the subpoena process to litigants and the attendant loss of privacy in the following terms:
[59] A claim by an insured against an insurer founded on alleged theft of a motor vehicle may be bona fide or otherwise. Before paying out a claim the insurer is required (as part of its duty to maintain a provident fund) to ensure that the claim is bona fide; this obligation requires the insurer to satisfy itself that the insured has not contrived, or been otherwise involved in, the loss.
[60] In the nature of things, the insurer has no direct knowledge of the events leading up to the loss; how the loss occurred; or what its immediate and subsequent consequences were. One source of such information (which does not bind the insurer) is the insured whose explanation inevitably favours the paying of the claim.
[61]The insurer has no natural contradictor to the insured’s version. Nonetheless it is not without tools with which to investigate the claim. It is entitled to enforce the duty of co-operation by questioning the insured and requiring the insured to produce documents about matters that are directly and indirectly relevant to the loss. Where, as here, the insured commences proceedings to recover the loss from the insurer, the insurer may also call in aid the Court’s coercive powers by requesting that subpoenas be issued, or by applying for an order for the administration of interrogatories. If the matter proceeds to hearing, the insurer also has an opportunity of cross-examining the insured and his or her witnesses.
[62] Each of these steps tends to involve a loss of privacy. Some modicum of protection is provided by the so-called Harman undertaking (named after Harman v Secretary of State for the Home Office), that material produced by reference to compulsory processes that is not admitted into evidence is not to be used for any purpose outside the proceedings, including in other proceedings, without the leave of the Court. The foreseeable, if not inevitable, invasion of privacy occasioned has never been thought to be a bar to the proper investigation of the matter.
[63] For example, in claims for damages for personal injury , it is orthodox to subpoena all the medical records from a plaintiff’s general practitioner. A matter of forensic significance may emerge from a casual remark given to such a practitioner prior to the incident in question, which can lead to a forensic trail and ultimately prove to be relevant to the issues in the proceedings. Such subpoenas are not regarded as an abuse of process although they might call for documents generated over a plaintiff’s lifetime rather than within a defined period before and after the injury in question. The utility of documents produced in answer to such subpoenas indicates that proper and thorough investigation requires inquiries to be made, including by the issue of subpoenas , not all of which will prove fruitful or give rise to documents which can either be used in cross-examination or which will be admissible in evidence at the eventual hearing of the proceedings. (citations omitted and emphasis added)
[5]See e.g. Lowery (n 4) 333 [63] (Adamson J); Carter (a pseudonym) v Australian Air League Incorporated [2024] VSC 95, [24] (Daly AsJ).
[6]Mobil Oil Australia Ltd and Anor v Guina Developments Pty Ltd and Anor [1996] 2 VR 34 (Winneke P, Phillips and Hayne JJA); Lowery (n 4) 332-33 [62] (Adamson J).
These principles apply in the present case. The defendant has no direct knowledge of the plaintiff’s history leading up to the incident, and is not obliged to accept what the plaintiff says, including her assertion that she has disclosed all relevant information. It is entitled to issue subpoenas as a part of the process of investigating the claim, which is substantial and expressed very broadly, in order to determine whether it is sustainable. As acknowledged by Adamson J in Lowery, this may involve a loss of privacy but that does not mean it is an abuse of process, or otherwise inappropriate, and in any case, some degree of protection is provided by the limits on the use of such information to the proceeding in which the subpoena was issued.
Privacy issues under the Health Records Act 2001 (Vic)
The plaintiff also submits that the subpoenas should be set aside on the basis that they are ‘an illegal collection of medical information’ contrary to s 18 of the Health Records Act 2001 (Vic) (‘HRA’), and that they contain her ‘unique identification number’ which I take to mean her Medicare number. I do not accept that submission. As discussed above, the subpoenaing of health records is an orthodox step taken in personal injuries proceedings pursuant to rules of the Court and subject to Harman obligations. The purpose of the HRA include ‘to balance the public interest in protecting the privacy of health information with the public interest in the legitimate use of that information.’[7] The HRA relevantly provides that an act is an ‘interference with privacy’:
if, and only if—
(a)the act or practice breaches Part 5 or a Health Privacy Principle in relation to health information that relates to the individual; or
(b) the act or practice breaches HPP 7 in relation to an identifier; or
(c)the act or practice is or results in a failure to provide access to health information that relates to the individual in accordance with Part 5 or HPP 6.[8]
[7]Health Records Act 2001 (Vic) s 6(b).
[8]Ibid s 18.
The plaintiff submits that the defendant has breached the following privacy principles:
Principle 1 Collection
1.2 An organisation must collect information only by lawful and fair means and not in an unreasonably intrusive way.
1.4 If it is reasonable and practicable to do so, an organisation must collect personal information about an individual only from that individual.
Principle 2. Consent. Requires and individual’s consent to the collection, storage, management, use, or disclosure of their personal information.
I reject the submissions that the issuing of the subpoenas, or obtaining access to the documents, constitutes a breach of any of the Health Privacy Principles of the HRA. Section 7(1) of the HRA provides:
If a provision made by or under this Act is inconsistent with a provision made by or under any other Act, that other provision prevails and the provision made by or under this Act is (to the extent of the inconsistency) of no force or effect.
The rules of the Court provide that subpoenas may be issued. To the extent the subpoena process involves compelling the disclosure of confidential health information, it overrides any restrictions on such disclosure by the HRA.[9] In the context of personal injury claims, the issuing of subpoenas is not unlawful, or unfair or unreasonably intrusive but is an entirely orthodox step in such proceedings, subject to its own limitations. There is no force to the submission that the defendant should have sought that information from the plaintiff, first, because it would not be expected that she would possess the medical records, and secondly, because it is apparent that even if she did have those documents, she would have resisted production in any case forcing the defendant to exercise its rights under the Rules and in accordance with the order made on 11 December 2023 permitting subpoenas to be issued.
[9]See Tikiri Pty Ltd (t/as Bundoora Family Clinic) v Fung (2016) 50 VR 786, 798 [52] (Ierodiaconou AsJ). See also the qualification of s 21(1) in s 21(2) of the HRA.
Procedural issues
The plaintiff also submits that the defendant improperly issued the subpoenas prior to the close of pleadings. I do not accept this is a basis upon which the subpoenas should be set aside. The plaintiff has filed an amended Statement of Claim and the defendant has filed a Defence. There is no impediment to the defendant issuing subpoenas at this stage of the proceeding in accordance with the order made on 11 December 2023.
The plaintiff also submits that the Court has failed to make specific disclosure orders under s 55(2)(a)(ii) of the Civil Procedure Act 2010 (Vic). I do not accept this is a basis upon which the subpoenas should be set aside. The subpoena process under Order 42A has been followed by the defendant. The legitimacy of the steps undertaken do not depend upon the Court making specific disclosure orders under s 55(2)(a)(ii) which relate to discovery.
Conclusion
For the above reasons, I refuse the plaintiff’s application to set aside the subpoenas. As noted, the documents produced are in response to the Services Australia, St Kilda South Medical Clinic, Wyndhamvale Health Care, and Supernova Medical Centre subpoenas, but nothing has yet been produced by Wyndham Health Care. In those circumstances the order dismissing the objection and permitting inspection will apply at this stage to documents produced pursuant to the Services Australia, St Kilda South Medical Clinic, Wyndhamvale Health Care, and Supernova Medical Centre subpoenas, but not to the Wyndham Health Care subpoena. If documents are produced pursuant to the Wyndham Health Care subpoena, I propose to inspect those documents to determine whether the subpoena should be set aside or inspection permitted.
I direct the defendant to provide a draft order reflecting these reasons and any order as to costs that may be agreed within seven days. If the parties do not agree as to costs, I direct that short written submissions be filed within seven days. I note that the defendant’s submissions filed on 23 August 2024 address the question of costs.
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