Taylor (a pseudonym) v Gutierrez
[2015] VCC 558
•8 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. Restricted
KAYLEIGH TAYLOR (a pseudonym) Plaintiff
v
SENIOR CONSTABLE GUTIERREZ First Defendant
and
CONSTABLE PHOEBE COULSON Second Defendant
and
THE STATE OF VICTORIA Third Defendant
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 April 2015 | |
DATE OF RULING: | 8 May 2015 | |
CASE MAY BE CITED AS: | Taylor (a pseudonym) v Gutierrez & ORS | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 558 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application by First and Second Defendants to inspect Plaintiff’s medical and hospital records subpoenaed pursuant to Rule 42A - Objection by Plaintiff on ground of “medical privilege” pursuant to s28(2) Evidence (Miscellaneous Provisions) Act 1958 - Further application by First and Second Defendants to inspect all of Plaintiff’s LEAP records produced pursuant to a subpoena served upon the Chief Commissioner of Police – Objection by Plaintiff on grounds of lack of legitimate forensic purpose
Legislation Cited: Evidence (Miscellaneous Provisions) Act 1958
Cases Cited:Elliott v Tippett [2008] VSC 175, Ginnity v Prefsure Life Limited [2007] VSC 284, Australasia Ltd v Godrich (1990) 10 CLR 1, Attorney-General (MT) v Maurice (1986) 161 CLR 475, Great Atlantic Insurance Co v Home Insurance Co (1981) 1 WLR 529, Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation (No 2) (1986) 161 CLR 475, Abondio v Women’s and Children’s Health Care Network [2000] VSC 51 29, Mann v Carnell (1999) 201 CLR 1, Kadian & Ors v Richards & Anor (2004) 61 NSW LR 222, Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC 0003, Messade v Baires Contracting Pty Ltd [2011] VSC 56, Woolworths Ltd v Svajcer [2014] VSC 613, Velkoski v R (2014) VSCA 12, Rapson v R [2014] VSCA 216.
Ruling: Applications refused. Subpoenas issued by the First and Second Defendants set aside.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Spencer | Robinson Gill Lawyers |
| For the First and Second Defendants | Mr A Imrie | Russell Kennedy Solicitors |
HER HONOUR:
1 The plaintiff has brought proceedings against the first and second defendants, two police officers, and the third defendant, the State of Victoria, pursuant to the Crown Proceedings Act 1958 (as the operator of the Police Force of Victoria and the employer of the first and second defendants). The plaintiff alleges that on 12 December 2010 (“the subject date”) she was assaulted by the first and second defendants and unlawfully imprisoned by them (“the subject incident”), as a result of which she suffered injury to the nose, right knee, right thigh and scalp and also Post-Traumatic Stress Disorder and major depression with anxious features and features of panic. The plaintiff claims damages, including aggravated and exemplary damages, against the defendants.
2 The defendants admit that, on 12 December 2010, the first and second defendants arrested the plaintiff, but plead that such arrest was lawful, as the plaintiff was drunk and disorderly in a public place, the plaintiff was abusive and aggressive towards the first defendant and assaulted him and, in the course of the first defendant pushing the plaintiff away from him, she fell and struck her face on the pavement. The defendants deny the allegations of false imprisonment and plead that the first and second defendants acted necessarily or reasonably in good faith in the course of their duty and are not liable. Further, save for acknowledging that the plaintiff had a small amount of blood under her nose, the defendants do not admit that the plaintiff has suffered any injury, loss or damage.
3 The defendants plead various other defences referable to the provisions of the Wrongs Act 1958 and lack of applicability of the Crown Proceedings Act 1958, however, it is unnecessary to detail same for the purposes of this ruling.
4 The first and second defendants have issued subpoenas for the production of hospital and medical records of the plaintiff, and the plaintiff objects to them inspecting such records on the ground of medical privilege pursuant to s28(2) Evidence (Miscellaneous Provisions) Act 1958 (Vic) and seeks to have the subpoenas set aside.
5 The first and second defendants, also, have issued a subpoena to the Chief Commissioner of Police for the production of the plaintiff’s LEAP records. The plaintiff seeks to have the subpoena set aside on the ground that there is no legitimate forensic purpose to justify it.
The application of the first and second defendants relating to hospital and medical records of the plaintiff
6 As part of the interlocutory process, the plaintiff served upon the defendant’s reports from her treating general practitioner, Dr Fogarty, who, along with other general practitioners, has treated the plaintiff at Brunswick Community Health Centre (“BCHC”), both before and after the subject date. Also, the plaintiff served reports from Dr Bates, a psychologist, who has treated the plaintiff subsequent to the subject date, and reports from Dr Serry, a psychiatrist, who conducted assessments of the plaintiff at the request of her solicitors on 20 June 2012 and 17 July 2014.
7 Following the service of Dr Fogarty’s reports, the first and second defendants subpoenaed the plaintiff’s medical records from BCHC and Dr Bates. The plaintiff has permitted inspection of those records. This application by the first and second defendant seeks inspection of the plaintiffs records subpoenaed by them from Melbourne Health (which includes Royal Melbourne Hospital) and from a Dr Jackson, psychiatrist. The plaintiff received treatment from Melbourne Health and Dr Jackson prior to the subject date. The plaintiff objects to such inspection on the grounds of medical privilege pursuant to s 28 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).
8 Inspection of BCHC medical records by the solicitor for the first and defendants revealed the presence of a discharge summary from the Royal Melbourne Hospital (RMH) relating to an admission of the plaintiff to the psychiatric unit from 18 March 1998 to 26 March 1998 (“the RMH summary”).[1] This included a note that the plaintiff had eluded to a traumatic event having occurred within the previous six months, when she had moved out of home, following which, she had returned to live with her mother. The RMH summary states that the plaintiff did not give details of the traumatic event to staff members. It records that her mother had become concerned about the plaintiff becoming housebound and not attending to personal care and that her mother had taken her to see a psychiatrist twice prior to the admission. The admission had occurred following a suicide attempt by the plaintiff. According to her mother, this involved a suspected overdose and laceration of her left wrist. The RMH summary contains a reference to a past psychiatric history as follows: “Dr Jackson had diagnosed PTSD and commenced the patient on Aropax 20 mg daily”.
[1]The RMH summary is Exhibit “BJL-11” to the Affidavit of Benjamin Jeffry Lloyd, solicitor for the First and Second Defendants sworn on 16 April 2015, and filed in support of the application before the court. (“Mr Lloyd’s affidavit”)
9 The RMH summary went on to describe the plaintiff’s mental state examination and that: “It was felt that she was unsafe and therefore made an involuntary patient.” It later noted that: “She was discharged to the care of her mother with an appointment to see Dr Christine Jackson that week. An attempt was made to contact Dr Jackson regarding her ongoing care and PACE involvement. Dr Allard from PACE was going to try to contact Dr Jackson”.
10 There appears to be no doubt that the traumatic event referred to in the RMH summary is a gang rape of the plaintiff, which allegedly occurred in late 1997 when the plaintiff was aged 18 years. This is referred to in the past psychiatric history recorded in each of Dr Serry’s reports.[2] It is not referred to in the reports of Dr Bates, who noted that the referral from the general practitioner, Dr Duncan Howard (from BCHC) mentioned “a previous history of depression and anxiety”. Dr Bates states, “I have limited evidence of the symptoms previously experienced”.[3] However, a document obtained by the first and second defendants from the subpoenaed records of Dr Bates makes it plain that Dr Bates had a history of gang rape. It is specifically recorded in Dr Bates’ notes of a consultation with the plaintiff on 9 February 2011.[4]
[2]Reports dated 20 June 2012 and 17 July 2014 are Exhibit “BJL-2” to Mr Lloyd’s affidavit.
[3]Dr Bates reports dated 19 October 2011 and 2 April 2014 are Exhibit “BJL-10” to Mr Lloyd’s affidavit.
[4]Exhibit “BJL-3” to Mr Lloyd’s affidavit.
11 Another document in the records subpoenaed from BCHS is a fax cover sheet from MH-SKY Mental Health Services. The gang rape is addressed to Dr Fogarty and dated 22 November 2000. It states, “Please find discharge summary for [the plaintiff] who now receives follow up for mental health by Dr Christine Jackson (Private Psychiatrist). This summary for your needs”.[5] However, no actual discharge summary correlating to the fax cover sheet appears to be amongst the BCHS records (unless it was the RMH discharge summary, as both RMH and MH-SKY are part of Melbourne Health).
[5]Exhibit “BJL-5” to Mr Lloyd’s affidavit
12 The subpoenaed records from BCHC include a progress note on 7 December 2000. It records “difficulty sleeping – mind going in and out of daydreams”. It notes that the plaintiff is on Valporate 100 milligrams and Aropax 10 milligrams and then records “attends Christine Jackson (saw yesterday) – due to see next Wednesday. Thinks may be related to anniversary of ‘bad stuff’ (three years ago)”. Further, approximately one year later, a note written on either 9 or 19 November 2001 refers to “emotional distress (anniversary of sex’l assault)”.
13 It would appear that, after becoming aware of the RMH summary and the MH‑SKY document, the solicitor for the first and second defendants issued a subpoena to Melbourne Health seeking: “all clinical, medical reports (including any computerised medical records or history) handwritten notes, x‑ray films, CT, MRI or other diagnostic scans, certificates, correspondence or reports (including draft reports) relating to [the plaintiff]).”
14 In response to such subpoena, the Melbourne Health records of the plaintiff have been produced to the Court. As previously stated, the first and second defendants seek to inspect them. However they acknowledge that the scope of the subpoena is too wide and now seek only such records as relate to the plaintiff’s mental health history.
15 The solicitors for the first and second defendants also issued and served a subpoena upon Dr Christine Jackson at Austin Health in Heidelberg, seeking production of: “all clinical notes (including computerised medical records or histories and handwritten notes), medical records (including draft reports), (with any attachments), questionnaires, diagnostics and correspondence (including letters, facsimiles or emails) relating to [the plaintiff].”
16 As with the subpoena to Melbourne Health, the first and second defendants have conceded that the subpoena to Dr Jackson should be confined to records relating to the plaintiff’s mental health history.
17 In fact, no documents have been produced in response to the service of the subpoena to Dr Jackson, because it would appear that it has been directed to her at the Austin Hospital where there are no mental health records of the plaintiff. Thus, the first and second defendants seek leave to issue a new subpoena addressed to Dr Jackson at another address to produce records relating to the plaintiff’s mental health history.
18 As previously stated, the plaintiff objects to inspection of the documents produced by Melbourne Health in response to the subpoena served upon it. Further, if the first and second defendant are given leave to issue a fresh subpoena to Dr Jackson at an alternative address, the plaintiff objects to them inspecting those records. The plaintiff’s objection is based on a claim for medical privilege pursuant to s28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).
Arguments of the first and second defendants in support of inspection of the plaintiff’s hospital and medical records
19 The first and second defendants’ application to inspect the records of Melbourne Health and to subpoena and inspect the records of Dr Jackson, is supported by Mr Lloyd’s affidavit and the Exhibits to same. The first and second defendants rely particularly upon the following material:
(a)Dr Serry’s reports which refer to the plaintiff having been raped by an unknown number of males at age 18 and having seen a psychiatrist between the ages of 19 and 23 and having been prescribed mood stabilisers and antidepressants. (According to the RMH summary, the psychiatrist appears to have been Dr Jackson).
(b)Records subpoenaed from the plaintiff’s treating psychologist, Dr Bates, which reveal that a session on 6 May 2011 “explored prev admission to hosp age 19 – mother betrayed with her CATT Team. They held me down like the rapists/torturers” (presumably a reference to the gang rape when the plaintiff was aged 18).[6]
(c)Documents subpoenaed from BCHC, which include a letter of referral from Dr Fogarty to one Louise Bailey dated 28 July 2010 (that is, only 4 ½ months prior to the subject incident). The referral states that the plaintiff: “has a long history of depressive symptoms with times where anxiety has been overwhelming. She is at a point where she is keen to undertake change. She will benefit from learning techniques to deal with her symptoms. There is a long history of family trauma which may be worth investigation in the future. Could you please assess”.[7]
[6]Exhibit “BJL-12” to Mr Lloyd’s affidavit
[7]Exhibit “BJL-9” to Mr Lloyd’s affidavit. I note that, the first and second defendants issued a subpoena to Louise Bailey seeking production of medical records of the plaintiff in her possession. In response to the subpoena, Dr Paul Bailey, husband of Louise Bailey, wrote a letter dated 3 April 2015 to the County Court advising that his wife had died on 13 September 2013. He further advised that he had been informed that the plaintiff made an appointment for Tuesday 17 August 2010 to see his late wife but the appointment was cancelled, and records show that no further appointments were made. Thus, he indicated that he was not able to produce any clinical notes or other documents in response to the subpoena.
20 Mr Imrie, on behalf of the first and second defendants, submitted that the plaintiff is not entitled to rely upon medical privilege in s28 (2) because:
(i)She had impliedly waived privilege by reason of selective disclosure of material. He submitted that Dr Bates and Dr Serry had expressed opinions that the plaintiff’s current mental conditions of Post-Traumatic Stress Disorder and Major Depression with anxiety and features of panic were caused by the subject incident. However, as Dr Bates and Dr Sherry have not been privy to the entirety of the plaintiff’s mental health history, in that they were not supplied with her complete Melbourne Health psychiatric record or any material from Dr Jackson, “they have been informed inadequately”. He submitted that it is important that the defendants be able to inspect these records in order to put the full circumstances of the plaintiff’s psychiatric history to Dr Serry and Dr Bates, otherwise, at the trial the defendants’ counsel would be cross-examining them “with one hand tied behind his back”. Mr Imrie particularly relied upon the authority of Elliott v Tippett[8] in submitting that the absence of those records meant that both Dr Bates and Dr Serry had an incomplete picture which was perhaps misleading. Hence, he submitted that the selective disclosure by the plaintiff made it unfair and inconsistent for her to maintain the confidentiality of information which she had given to Melbourne Health and Dr Jackson.
(ii)There has been “issue waiver” by the plaintiff. This is said to arise by reason of the plaintiff having pleaded that the conduct of the first and second defendants in the subject incident has caused conditions of Post-Traumatic Stress Disorder and Major Depression with anxious features and features of panic. Mr Imrie submitted that the material exhibited to Mr Lloyd’s affidavit makes it clear that these same conditions were diagnosed by the psychiatrist, Dr Christine Jackson, prior in time to the subject incident. Moreover, Dr Bates’ note of 6 May 2011 refers to the plaintiff’s earlier admission at age 19 where the CATT team “held (her) down like the rapists/torturers”. Thus, there is evidence that the plaintiff has been traumatised by restraint in the past. Mr Imrie submitted that this is important on the issue of causation, in particular, as to what, if any, part of the action of the first and/or second defendant on the subject date can be said to have produced the condition or conditions of which she complains.
Mr Imrie relied upon the authority of Ginnity v Prefsure Life Limited[9] as support for the proposition that the plaintiff, by her pleadings, has put in issue her mental state. He submitted that, where the material reveals a pre-existing injury of the same or similar type, an inconsistency or unfairness arises between the plaintiff making the assertion that his clients have caused her mental health injuries and her maintaining privilege over documents relevant to her mental health prior to the subject incident. Mr Imrie submitted that, here, the reports of the doctors which the plaintiff had served upon the defendant show that those doctors do not have a complete picture of her prior symptoms and, hence, the material sought to be inspected from Melbourne Health and Dr Jackson is important to enable a proper assessment of the plaintiff’s alleged injuries from the subject incident.
[8][2008] VSC 175
[9][2007] VSC 284
Legal principles
21 It is plain that s28(2) of the Evidence (Miscellaneous Provisions) Act prohibits the plaintiff’s medical treaters from disclosing any information which they have acquired in attending her, and which was necessary to enable them to prescribe or act for her, unless she consents to such disclosure. The range of protected information has been held to be broad: National Mutual Life Association of Australasia Ltd v Godrich.[10]
[10](1990) 10 CLR 1
22 In this case, the plaintiff does not consent to practitioners who treated her at Melbourne Health or to Dr Jackson divulging any information to the defendants. Hence, the confidentiality of those records must be upheld unless the plaintiff has impliedly waived privilege over them by either selective disclosure or putting their contents in issue by the way in which she has mounted her case, such that there is an inconsistency or unfairness between the assertion of her claim against the first and second defendants and the maintenance of the privilege.
Analysis of whether there has been implied waiver by selective disclosure
23 In Attorney-General (MT) v Maurice,[11] the High Court discussed the authorities on waiver by selective disclosure. It approved the principle in Great Atlantic Insurance Co v Home Insurance Co,[12] where it was held that “the rule that privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder is based on the possibility that any use or part of a document may be unfair or misleading.” The High Court also quoted with approval from the judgement of Mustill J in Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation (No 2): “Where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood”.[13]
[11](1986) 161 CLR 475
[12](1981) 1 WLR 529
[13](1986) 161 CLR 475 at 482
24 In my view, the correct analysis is as follows: By serving upon the defendants reports from her general practitioner, Dr Fogarty, and from her treating psychologist, Dr Bates, the plaintiff waived privilege in those doctors’ own notes and also anything within those doctors’ records which informed their opinions. There is no evidence that Dr Fogarty (or any other general practitioner who treated the plaintiff at BCHC) had access to other than the documents contained within the subpoenaed BCHC file. That file contained the RMH summary and the fax cover sheet from MH-SKY,[14] but no other documents from Melbourne Health. It did not contain any document from or note of communication with Dr Jackson. There is no evidence that either Dr Bates or Dr Serry had access to any material from Melbourne Health or Dr Jackson. Thus, the defendants appear to have the whole of the material which was available to each of the doctors, Dr Fogarty, Dr Bates and Dr Serry, in forming their respective opinions.
[14]Even if there was a discharge summary from MH-SKY which was different from the RMH summary, it is unlikely to be of any moment, since the fax cover sheet makes it clear that the plaintiff was no longer being treated there, but, rather, by Dr Jackson.
25 It is important to bear in mind the principle stated by Hedigan J in Abondio v Women’s and Children’s Health Care Network, that “the alleged necessity of the defendant's experts to access the relevant information cannot be decisive of the issue of privilege. If it is privileged and unwaived, it matters little how much the defendant needs it in order to form their opinions, as the rights protected by s28(2) will prevail.”[15]
[15][2000] VSC 51 29 February 2000 paragraph [22]
26 In this case, what is sought by the defendants are records of treatment of mental health conditions of the plaintiff which precede (my emphasis) the subject incident. In that sense, the facts are quite distinct from those in the cases of Elliott and Ginnity. Indeed, Hedigan J cautioned in Abondio that “the defendant's submissions overstate the position in contending that all records must be accessible in order to enable the Court to determine the issue of causation. This over-extension of the argument might, if correct, draw in the right to have all the other party's records and reports drawn in as admissible.”[16]
[16](Ibid) paragraph [14]
27 In his submissions, Mr Imrie stated that Dr Serry’s two reports under the heading “Summary” refer to the plaintiff having never had any similar previous experiences. Thus, he submitted, “It is clear his history is incomplete. He has missed it” and it is important to be able to put the full circumstances of the plaintiff’s history prior to the subject incident to Dr Serry and the other doctors in cross-examination. However, there is no evidence that the plaintiff had had any similar experience by being restrained by police (my emphasis) in the way that she describes during the subject incident, although she has a previous history of being gang raped. Dr Serry clearly had a history of the rape. Under “Past Psychiatric History” in his report dated 20 June 2012 he recorded: “Your client stated that she developed depression and post traumatic stress after being raped at the age of eighteen. The incident was reported but there was no court case. She was raped by a number of unknown males”.[17]
Your client saw a psychiatrist for some four years between the ages of nineteen and twenty-three. Your client was briefly treated with the mood stabiliser Sodium Valproate and also with the antidepressant Arapax.” [18]
[17]In his later report dated 17 July 2014 Dr Serry stated that the plaintiff “was very much traumatised (my emphasis) after being raped at 18”
[18]Part of Exhibit “BJL-2” to Mr Lloyd’s affidavit at p 5 of the report.
28 Dr Serry went on to note that the plaintiff had also seen a psychiatrist on one occasion at about age twenty-five with depression, possibly secondary to bullying at work.
It is true that Dr Serry, in his reports did not detail a history of the plaintiff having an involuntary psychiatric admission some months after the gang rape, nor did he refer to the plaintiff being distressed by the CATT team restraining her in a manner that reminded her of her rapists/torturers, as Dr Bates had done. However, I note that in his report dated 20 June 2012, he states that he was assisted by documentation which included “Dr Bates and records” and “Dr Fogarty …”, in his second report dated 17 July 2014, he states that he was assisted by documentation which included “Dr Bates x 2 & records” and “Dr Fogarty x 2” and “Brunswick Community Health Centre Records”. In these circumstances, it is not correct to assert that Dr Serry has an incomplete history.
29 As far as Dr Bates is concerned, Mr Imrie submitted that she had been inadequately informed because she seemed unaware that the plaintiff had previously suffered “precisely the same psychiatric conditions of which she now complains”.
30 The notes of Dr Bates for a session with the plaintiff on 9 February 2011 record the following psychiatric history:
“– sexual abuse
– was gang raped at eighteen
– had an admission to Royal Park, with CATT involvement and EPIC involvement claims to have had a previous psychosis (reported she was sexually assaulted whilst an in-patient).
– saw a psychiatrist for 4 years”[19]
[19]Exhibit BJL-3 to the affidavit of Mr Lloyd
31 Further, Dr Bates’ handwritten notes of a session with the plaintiff on 6 May 2011 state, “Explored previous admission to hosp age nineteen – mother betrayed her with CATT team. They held me down like the rapists/torturers.
Reframed past trauma – focussed on personal strengths, her current context is not the same (my emphasis), how she ‘s changed her life.”[20]
[20]Exhibit BJL-12 to the affidavit of Mr Lloyd
32 It is revealed in the material which the defendant has from Dr Bates that, not only did she know of the plaintiff’s involuntary admission following the gang rape and the specific CATT team involvement where the plaintiff was held down, but, also that she did not categorise it as being the same as her current context (ie. the subject incident). In other words, 12 years previously the plaintiff had been gang raped by a group of unknown males, following which she had been held down by a CATT team in the context of being admitted to hospital. At the time of the subject incident, the plaintiff perceived that her boyfriend was the aggressor and the police treated her unfairly and roughly. Hence, as Dr Bates has recorded in her report dated 2 April 2014, “She no longer believes that she can be truly safe because the authority deemed to protect her have rendered her powerless.”[21]
[21]Page 2 of Exhibit BJL-10 to the affidavit of Mr Lloyd
33 The reports which have been served upon the defendants refer to the traumatic event (the gang rape) in 1997 and the subsequent involuntary admission to RMH for 8 days in March 1998. The authors of the reports, themselves, have not had access to the documents subpoenaed and sought by the defendants. I cannot see how the mere mention of these matters of history amounts to waiver of privilege by the plaintiff. The very nature of the prior event, a gang rape when the plaintiff was only eighteen years old, makes it understandable why the plaintiff would not want her confidence breached relating to treatment for that event. The sensitivity of the material itself is not determinative of the question of waiver, but, according to the plaintiff’s counsel, even the plaintiff’s own legal representatives don not have any records from Dr Jackson. There is no evidence that Dr Jackson has treated the plaintiff since the subject incident. In these circumstances I do not consider that there has been selected disclosure either in relation to Melbourne Health records or Dr Jackson’s records. This is not a situation where the material which has come to light concerning either of those treaters runs the risk of an injustice through its real weight or meaning being misunderstood.
34 There is evidence before me which suggests that, in the mid-2000s, the plaintiff was feeling bullied at work and became depressed and apparently saw a psychiatrist once.[22] Again, the mere reference to such history, in my view, does not amount to any form of selective disclosure such as to override the plaintiff’s medical privilege. This is particularly so in the light of there being no evidence that the plaintiff has seen Dr Jackson or another psychiatrist for treatment since the subject incident. Indeed, in the subpoenaed records from these BCHC is a letter from Dr Fogarty to the plaintiff’s solicitors dated 11 May 2012, which states, “Consultant psychiatrist referral has been discussed with [the plaintiff]. She remains reluctant to undertake further referral.”
[22]Dr Serry’s reports dated 12 June 2012 (page 5) and 17 July 2014 (page 4-5) – Exhibit BJL-2 to the affidavit of Mr Lloyd
35 The first and second defendants also rely upon Dr Fogarty having referred the plaintiff for assessment of “a long history of depressive symptoms with times where anxiety has been overwhelming” to the now-deceased Louise Bailey on 27 July 2010. It is plain that the plaintiff never did see Ms Bailey. There is no evidence that the plaintiff saw any other counsellor, psychologist or psychiatrist at that time or at any other time subsequent to 27 July 2010, but prior to the subject incident. Accordingly, I cannot see how this letter of Dr Fogarty’s can construed as selective disclosure, particularly given that the first and second defendants have already had the opportunity to inspect the entirety of the BCHC records and the plaintiff’s history of depression and anxiety documented therein.
Analysis of the arguments relating to issue waiver
36 In Ginnity, Hollingworth J held that the plaintiff’s claim against the defendant clearly put in issue her mental state since June 2000. In that case, the plaintiff claimed to be entitled to income protection benefits under a policy of insurance with the defendant because she suffered a depressive disorder for which she was treated for some three months by a particular psychiatrist. That treatment took place during the very period which was the subject of the claim by the plaintiff against the defendant. Her Honour held that, in those circumstances, there had been issue waiver, regardless of whether the plaintiff intended to call the particular psychiatrist as a witness. Her Honour held that, in the light of how the plaintiff’s case was put, principles of inconsistency and unfairness made her claim for privilege unmaintainable. That is a very different scenario from the facts of this case, where the evidence indicates that a gang rape of the plaintiff 12 years prior to the subject incident necessitated treatment by a psychiatrist (presumably Dr Jackson) for four years and that the inpatient stay at Melbourne Health was towards the beginning of that four year period (namely, March 1998).
37 The relevant test involves determining whether the plaintiff, by her bringing of the claim against the defendants and pleading mental-health injuries has acted in a manner inconsistent with the confidentiality that would otherwise pertain to her mental-health history records with Melbourne Health or Dr Jackson. The principles applicable to determining whether there has been waiver of medical privilege have been held to be similar to those applicable to waiver of legal professional privilege. In Mann v Carnell the High Court stated:
“What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.” [23]
[23]Mann v Carnell (1999) 201 CLR 1 at 13
38 In Elliott’s case, applying that principle, the court held that the plaintiff must disclose the file of a treating doctor who had organised an MRI scan and diagnosed her spastic quadriparetic cerebral palsy (which was alleged by the plaintiff to have been caused by the negligence of the defendant). This was because, otherwise, would make the information provided by the plaintiff’s mother as to that treating doctor’s role, when the plaintiff was being examined by another doctor, would be “incomplete and perhaps misleading.”[24] Further, the plaintiff knew and intended that the MRI scan organised by the treating doctor was to be made available to the defendant so she could seek expert advice on the issues between the parties. Thus, it was held that the plaintiff had waived any privilege over such documents of the treating doctor for the purpose of the proceeding and it was unrealistic to limit the way in which those documents could now be employed in the proceeding.
[24][2008] VSC 175 at paragraph [40]
39 The situation in this case is not analogous to that in Elliott. The material sought to be inspected by the first and second defendants relates to a condition of Post-Traumatic Stress Disorder and depression apparently diagnosed in or about 1998 following the gang rape of the plaintiff. As previously mentioned, there is no evidence that anyone from Melbourne Health or Dr Jackson have treated the plaintiff for the mental injuries said to have been caused by the subject incident. It is trite to say that there may be discrete incidents which give rise to mental health injuries. Simply because the plaintiff has been diagnosed with Post-Traumatic Stress Disorder and depression a decade or more before the subject incident does not mean that the Post-Traumatic Stress Disorder and depression said to have been caused by the subject incident is “the same or a similar type of injury” to the plaintiff’s earlier injury.
40 Certainly, the first and second defendants rely upon Dr Fogarty’s referring letter to the now-deceased Dr Bailey as being an indication of relevant on-going mental health issues suffered by the plaintiff only some 4 ½ months prior to the subject incident.[25] However, an examination of the BCHC file shows that the clinical note of Dr Fogarty immediately preceding this letter is an entry of 30 June 2010 that the plaintiff, who was working as a nurse, was complaining that her mood was down and she was not going back to the Royal Children’s Hospital due to bullying and had walked off her shift. Although Dr Fogarty’s letter refers to “a long history of depressive symptoms with times where anxiety has been overwhelming”, there is no mention that the plaintiff, at that time leading up to the subject incident, was suffering Post Traumatic Stress Disorder or Major Depression with anxious features and features of panic (the mental issues alleged by the plaintiff to be caused by the subject incident).
[25] Exhibit “BJL-9” to Mr Lloyd’s affidavit.
41 The records sought to be inspected by the first and second defendants clearly relate to treatment well prior to the subject incident in circumstances where nobody from Melbourne Health or Dr Jackson is said to have treated the plaintiff since the subject incident. Mr Imrie asserts that if these records are not inspected by the defendants then their counsel at trial will not be able to effectively cross-examine the plaintiff’s expert witnesses.
42 In Kadian & Ors v Richards & Anor, the court stated the issue of whether the plaintiff’s claim of privilege is inconsistent with her having brought the proceeding “depends on whether the means available to the defendant to be informed about, and inquire into, the plaintiff’s health are sufficient to enable the defendant to have a fair opportunity of defending the claim”.[26]
[26](2004) 61 NSW LR 222 at 248 (paragraph [79])
43 Here the defendant has the entirety of the plaintiff’s general practitioner’s records (which appear to go back to 1992), together with the notes of Dr Bates and the histories recorded by Dr Serry, Dr Bates and Dr Fogarty and other general practitioners at the BCHC. In short, the first and second defendant have as much information available to them to defend the claim as the plaintiff’s own treating doctors and the one medico‑legal expert retained by the plaintiff’s solicitors. In my view, the defendants have a reasonable opportunity of defending themselves using this information and there is no inconsistency between the plaintiff having commenced this proceeding and maintaining confidentiality over the records of her mental health treatment between approximately 1998 and 2002, some eight to 12 years prior to the subject incident.
44 It would be a different situation if the records in respect of which the plaintiff claims privilege were those of practitioners who had treated the plaintiff for injuries following and (alleged to be caused by) the subject incident. Indeed, it is difficult to imagine how the plaintiff could conduct her claim without calling evidence of such treatment. That is not the case here. It was the case in both Ginnity and also with treating doctor who had organised the MRI scan and diagnosed cerebral palsy in Elliott’s case.
45 Finally, I note that in a second affidavit sworn by Benjamin Jeffry Lloyd on 16 April 2015, reliance was placed upon an additional document apparently found when the solicitors for the first and second defendants inspected the BCHC file. This was an authority apparently forwarded to BCHC authorising “any hospital, medical practitioner, employer, prospective employer, government body, Medicare or other person” to supply the plaintiff’s solicitors with “any and all information whether under the Freedom of Information Act or otherwise, including clinical notes, x‑rays, pathological reports, police reports and statements and any other information.”
46 Mr Imrie made no mention of this affidavit or the exhibit to it and I cannot imagine how the first and second defendants consider that an authority for release of information to her own solicitors somehow waives the plaintiff’s privilege in the documents mentioned in the authority as far as the first and second defendants are concerned. I can only assume that this was somehow an attempt to bring the matter within the realm of what was decided in Ginnity. However, in that case, the authority which had been signed by the plaintiff authorised the disclosure to the defendant insurer itself. Clearly, that is not analogous to an authority to disclose information to the plaintiff’s own solicitors. Accordingly, I uphold the plaintiff’s claims of medical privilege. I rule that the subpoena to Melbourne Health and to Dr Jackson addressed to the Austin Hospital be set aside. I refuse the application of the first and second defendants for leave to issue a fresh subpoena to Dr Jackson.
The application by the first and second defendants to inspect the plaintiff’s LEAP record subpoenaed from the Chief Commissioner of Police
47 This application is objected to by the plaintiff on the basis that it has no forensic purpose.
48 Mr Imrie submitted that there a factual dispute between the plaintiff and defendants about what happened at the time of the subject incident and the plaintiff’s credit is very much in issue. He submitted that if the plaintiff’s LEAP records show that she has a prior history of being aggressive towards police, then that will go to her credit in “a tendency and coincidence way” and it is “on the cards” that it might resolve the factual dispute between the parties concerning their interactions at the time of the subject incident.
49 Mr Imrie also submitted that it may well be that the documents in the plaintiff’s LEAP record are relevant to the question of the cause of the plaintiff’s symptoms, whether due to earlier interactions with police or the subject incident, and hence to the question of damages. He submitted that it is important to remember that the plaintiff has claimed aggravated and exemplary damages. He argued that the extent to which she should be compensated for any humiliation involved in the subject incident may well be impacted upon by the plaintiff’s history of earlier interactions with police. He stated that the material already before the Court suggested that there would be LEAP records relating to the sexual assault of the plaintiff in 1997 (which led to a diagnosis of Post-Traumatic Stress Disorder) and also to the incident when she was restrained by a CATT Team at the time of her being made an involuntary patient in 1998 (recorded in Dr Bates’ clinical notes of 6 May 2011) Further, Mr Imrie pointed to the records of BCHC on 23 November 2004 in which Dr Fogarty notes another incident of domestic violence with a boyfriend.[27] He submitted that it is likely that this incident would also be referred to in the plaintiff’s LEAP records. Overall, he urged that the LEAP records may well show that the plaintiff had “animus” towards police prior to the subject incident, which arguably caused her to react in a particular way towards police on the night of the subject incident.
[27] Exhibit “BJL-6” to Mr Lloyd’s affidavit
Legal principles
50 In the Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria & Ors His Honour Justice J. Forrest set out principles applicable to determining whether a party is entitled to inspect subpoenaed documents as follows:
“(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;
(b)the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;
(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.”[28]
[28][2011] VSC 0003 at paragraph [28]
51 The above principles were applied by His Honour J Forrest in a subsequent decision of Messade v Baires Contracting Pty Ltd.[29] However, the Court of Appeal in Woolworths Ltd v Svajcer commented that the statement in paragraph (b) above was too broadly expressed and “except in cases where the subpoena is plainly too broad, and merits the description of a fishing expedition, the judge should normally inspect the documents for the purpose of making a final decision as to whether access should be granted.”[30] In any event, both parties in the case before me consented to my inspecting the documents subpoenaed from the Chief Commissioner of Police in order to determine the application for inspection of them by the first and second defendant.
[29][2011] VSC 56
[30][2014] VSC 613 at paragraphs [41] and [42]
Analysis of the arguments in relation to the LEAP records
52 The police records relevant to the subject incident have already been disclosed by the plaintiff and the plaintiff accepts that they are relevant. They show that the plaintiff was charged with being drunk and disorderly, assaulting police and resisting arrest. Apparently after a contested hearing, at Melbourne Magistrates Court on 16 November 2011 one charge of resisting arrest was found proven and the plaintiff, without conviction, was fined $450.
53 Save for the records referable to the subject incident and the Magistrates’ Court hearing of the charges laid against the plaintiff, the plaintiff objects to the first and second defendants inspecting any other of the documents produced in response to the subpoena. Ms Spencer, on behalf of the plaintiff submitted that the scope of the subpoena is too broad as it relates to all interactions by the plaintiff with police and it is unlimited in time. Moreover, apart from the subject incident, there is no evidence that the plaintiff has ever been charged or found guilty of any other offence. Hence, it is submitted that the application by the first and second defendants has no forensic purpose because it is a fishing expedition.
54 It appears that the primary purpose for which the first and second defendants seek to inspect these documents is to see whether there is material which might be used to impugn the plaintiff’s credit. In Fried & Ors v National Australia Bank Ltd & Ors, Weinberg J held that, “the court should scrutinise carefully any subpoena directed towards the production of documents which are relevant to credit only, particularly when the documents are said to bear only upon matters which go to credit, and which are wholly unrelated to the issues in dispute.”[31]
[31](2000) FCA 911 at paragraph [27]
55 Mr Imrie argued that, if the subpoenaed documents showed a pattern of conduct whereby the plaintiff had been abusive to police, then this would be tendency evidence rendering it more likely that the plaintiff has behaved abusively towards police at the time of the subject incident as alleged by the first and second defendants.
56 I have inspected the subpoenaed documents. They show that, on a number of occasions prior to the subject incident, the plaintiff has allegedly been a victim of crimes she reported to police. In order for acts of the plaintiff to qualify for admission into evidence as tendency evidence, there must be features of underlying unity or a pattern of conduct or such similarity in previous acts as to render the occurrence of the alleged abusive conduct of the plaintiff at the time of the subject incident more likely. The features relied upon must possess significant probative value over and above mere relevance: Velkoski v R[32] and Rapson v R.[33]
[32](2014) VSCA 121
[33][2014] VSCA 216
57 There is no foundation for the submission made on behalf of the first and second defendants that the subpoenaed records may well show evidence of conduct that the plaintiff has a tendency to act in a particular way such that the exception in s97 of the Evidence Act to the admission of tendency evidence would apply. Nor does the material in the subpoenaed documents provide a foundation for the first and second defendants attacking the plaintiff’s credibility pursuant to Part 3.7 of the Evidence Act. In my view, there is nothing in the documents subpoenaed that could substantially affect the assessment of the credibility of the plaintiff in the way suggested by Mr Imrie.
58 In this case, I consider that the terms of the subpoena served by the first and second defendants upon the Chief Commissioner of Police is too wide and the submissions made by Mr Imrie have failed to demonstrate expressly and precisely the legitimate forensic purpose for which the documents are sought. Even if the first and second defendants had achieved this, I am not satisfied that it is on the cards, or that there is a reasonable possibility that the subpoenaed documents would materially assist the defence. I consider that the issuing of the subpoena is a fishing expedition. Accordingly, I refuse access to the documents as sought and set aside the subpoena to the Chief Commissioner of Police.
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