Tikiri Pty Ltd v Fung - [2016] VSC 460

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST

S CI 2015 00801

TIKIRI PTY LTD (trading as Bundoora Family Clinic)	Plaintiff
v
DR SIAUW (Susan) FUNG	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2016
DATE OF RULING:	5 August 2016
CASE MAY BE CITED AS:	Tikiri Pty Ltd v Fung
MEDIUM NEUTRAL CITATION:	[2016] VSC 460 (First Revision 15 August 2016)

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PRACTICE AND PROCEDURE – Subpoena – Confidential exhibit – Inspection of document – Doctor and patient – Disclosure of patients’ names – Statutory interpretation – Plain and ordinary meaning – Right to privacy – Unlawful or arbitrary interference – Charter of Human Rights and Responsibilities Act2006 ss 6, 7, 13, 32 – Momcilovic v The Queen (2011) 245 CLR 1; Slaveski v Smith (2012) 34 VR 206.

HUMAN RIGHTS – Charter of Human Rights and Responsibilities Act 2006 (Vic) – Applicability – Statutory interpretation – Plain and ordinary meaning – Health information – Information acquired in attending the patient – Information necessary to prescribe or act for patient – Health Records Act 2001 ss 3(1), 7, 21, Schedule 1 Health Privacy Principles 2.1 and 2.2 – Evidence (Miscellaneous Provisions) Act 1958 s 28(2) – National Mutual Life Association of Australasia Ltd v Godrich (1909) 10 CLR 1 – Elliot v Tippet (2008) 20 VR 195 – PQ v Australian Red Cross Society [1992] 1 VR 19.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Kirby	Nicholas O’Donohue & Co
For the Defendant	Ms S Gatford	McCracken & McCracken

HER HONOUR:

Introduction

This ruling concerns whether or not the plaintiff should be able to inspect and copy a confidential list of patient names filed by the defendant medical practitioner. The Court will not allow inspection by the plaintiff. Patient names are protected from disclosure by s 28(2) of the Evidence (Miscellaneous Provisions) Act 1958.

Background

The plaintiff is the operator of Bundoora Family Clinic, a general medical practice. The defendant is a general medical practitioner who worked at the practice from October 2007 until December 2014. Shortly afterwards, the defendant began work at another general medical practice, University Hill Medical Centre.[1] The plaintiff alleges, amongst other things, that the defendant has unlawfully used its confidential information at the University Hill Medical Centre.[2] This is denied by the defendant.[3]
[1]The exact date that Dr Fung commenced at University Hill Medical Centre is not agreed between the parties.
[2]Statement of claim filed 23 February 2015 (‘SOC’), [16].
[3]Defence filed 8 April 2015 (‘the defence’), [16].

On 26 February 2015, the Court made orders restraining the defendant from making any use or further use of patient records or files from the Bundoora Family Medical Clinic, and amongst other things, requiring her to file an affidavit detailing which patient records or files she had accessed, copied or removed; which patients she had contacted using the Bundoora Family Medical Clinic’s patient records or…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2016] VSC 460
Decision Date: 5 August 2016

CaseChat Overview and Summary

The matter of Tikiri Pty Ltd v Fung involved a dispute regarding the subpoena of confidential medical records, where the primary issue was whether the subpoena was lawful under the relevant statutes and charters. The court had to decide whether the subpoena complied with the Charter of Human Rights and Responsibilities Act 2006, particularly sections 6, 7, 13, and 32, and whether it conflicted with the Health Privacy Principles outlined in the Health Records Act 2001. The dispute also considered the implications of the Evidence (Miscellaneous Provisions) Act 1958, section 28(2), and the broader principles of privacy and unlawful interference.

The legal issues revolved around the interpretation of the statutes, particularly the extent to which the subpoena complied with the plain and ordinary meaning of the provisions in the Charter and the Health Records Act. The court had to balance the right to privacy of the patients against the need for disclosure in the context of the legal proceedings. The Health Privacy Principles 2.1 and 2.2 were central to determining the scope of information that could be disclosed without infringing on the patients’ privacy. Additionally, the court examined the applicability of precedents such as Momcilovic v The Queen and Slaveski v Smith, which dealt with similar issues of privacy and statutory interpretation.

The court found that the subpoena was unlawful as it did not comply with the plain and ordinary meaning of the provisions in the Charter and the Health Records Act. The Health Privacy Principles restricted the disclosure of personal health information unless it was necessary for the patient’s treatment or other specified purposes. The court held that the subpoena’s requirement to disclose patients' names and other confidential information was not justified under the circumstances, as it went beyond what was necessary for the legal proceedings. The decision underscored the importance of respecting the right to privacy and the protection of personal health information, aligning with the statutory interpretation that emphasised the protection of individuals' privacy rights.

The court ultimately quashed the subpoena, ordering that the confidential medical records not be disclosed as per the subpoena. This ruling reinforced the need for a careful and precise interpretation of statutes to ensure that privacy rights are upheld and that any interference is both lawful and necessary.

Orders