Victorian WorkCover Authority v Kinloch (Ruling)
[2012] VCC 1466
•25 September 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-10-03157
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| DR BRUCE KINLOCH | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2012 | |
DATE OF RULING: | 25 September 2012 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Kinloch (Ruling) | |
| MEDIUM NEUTRAL CITATION: [First Revision 3 October 2012] | [2012] VCC 1466 | |
RULING
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SUBJECT: PRACTICE AND PROCEDURE
CATCHWORDS: subpoena to a non-party for production of documents – objection to production – relevance – public interest immunity
LEGISLATION: Accident Compensation Act 1985, s138; Evidence Act 2008, ss130(1), (3), (4) and (5)
CASES CITED: Newnham v Davis [2010] VSC 13; Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921; Alister v R (1984) 154 CLR 404; Royal Women's Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22; Deputy Commissioner of Taxation v Law Institute of Victoria Ltd (2010) 27 VR 51
RULING: Documents 7, 17, 21 and 26 not be released to the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Hartley SC with Ms R Annesley | Russell Kennedy, Solicitors |
| For the Objector | Mr J Pizer | Carol Geyer Australian Health Practitioner Regulation Agency |
HIS HONOUR:
Introduction
1 Joeanne Marie Brady (“the deceased”) was employed by Nestlé Australia (“Nestlé”). On 19 March 1999, the deceased suffered injury in the course of and within the scope of her employment with Nestlé.
2 The defendant is a medical practitioner who conducts a specialist practice as a consultant physician in pain medicine and rehabilitation.
3 The defendant became a treating medical practitioner of the deceased, and in particular, between 7 February 2003 and 11 May 2007. During that period, he prescribed the deceased medication.
4 On 15 May 2007, the deceased died. It is alleged that she died as a result of the toxicity produced by the types of medication which she had been prescribed by the defendant and the deceased's general practitioner. It is unnecessary to say much more, because the foregoing provides the background to understand the plaintiff's proceeding and the application before me.
5 The plaintiff is a body corporate incorporated pursuant to the provisions of the Accident Compensation Act 1985 (“the Act”). It paid out sums of compensation under the Act consequent upon the death of the deceased.
6 The proceeding which it has brought against the defendant is based upon s138 of the Act to recover from the defendant the sums of compensation paid.
The Subpoena
7 In the course of the preparation of its case, the plaintiff served a subpoena dated 6 August 2012 on Ms Prue Dwyer of the Australian Health Practitioner Regulation Agency (“the Agency”).
8 The Agency has objected to the provision of some of the documents referred to in the schedule to the subpoena. The determination of the issue of the release of documents has an urgency about it, given that there is a trial of the principal proceeding scheduled for 2 October 2012.
9 Ms M Hartley SC appeared with Ms R Annesley of counsel for the plaintiff, and Mr J Pizer appeared for the Agency. The material which each of them put before me at the hearing of the application is as follows:
· The affidavit of Ms Kai-Yan Lam, solicitor, sworn 19 September 2012.
· Financial statements of the plaintiff for the year ended 30 June 2011.
· The affidavit of Ms R Padman, solicitor, sworn 20 September 2012.
The Documents
10 Mr Pizer provided me with a folder which contained a table of the documents which were the subject of the subpoena, and copies of the documents which the Agency objects to releasing to the plaintiff. Ms Hartley was not provided with the folder of the documents.
11 The documents the subject of the objection are:
· Document 7 – the objection taken was one of relevance. The document comprises a letter from the defendant to Mr G Brady, the father of the deceased.
· Document 17 – the objection taken was one of relevance. The document comprises a letter to the defendant from the Medical Practitioners Board.
· Document 21 – the objection taken was public interest immunity pursuant to s130(1) of the Evidence Act 2008. It comprised an internal investigation report of the Agency.
· Document 26 – the objection taken was public interest immunity pursuant to s130(1) of the Evidence Act 2008. It comprises internal working documents of the Agency relevant to the defendant.
12 The descriptions which I have given to each of the documents are cryptic in order to preserve the identity of the documents and their contents.
Document 7
13 Ms Hartley firstly took me to the Amended Statement of Claim and to the allegations made by the plaintiff against the defendant, and in particular, to the particulars of negligence and/or breach of agreement of the defendant, which she submitted demonstrated the allegations which the plaintiff intended to make against the defendant at trial.
14 It was through the prism of those allegations which I was asked to then look at Document 7 to determine whether it was relevant to the plaintiff's proceeding.
15 Ms Hartley and Mr Pizer both referred me to Newnham v Davis[1] in which Kaye J referred to the relevant principles which apply in determining whether subpoenaed documents are relevant to any of the issues defined in the pleadings. The submissions made to his Honour were that the documents are relevant where they are reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case, and that if it appears on the cards that the documents will materially assist in the conduct of a case. His Honour concluded that there was probably little difference between the two tests.[2]
[1][2010] VSC 13
[2]At paragraph 7, after referring to Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921, 927 and Alister v R(Ananda Marga Conspiracy/Hilton Bombing case) (1984) 154 CLR 404, 419
16 Ms Hartley submitted that Document 7 comprises a response by the defendant to a lengthy letter written by Mr G Brady, and is likely to contain his response to various concerns made plain in the letter of Mr Brady, who wanted to know why certain types of medication were prescribed to his daughter. Therefore, it meets the test of relevance and must be released.
17 Mr Pizer asked me to look at Document 7 and to consider its contents in the light of the test. I have looked at it carefully and have concluded that it is not relevant in any sense and will be of no assistance to the plaintiff in relation to any of the issues defined in the pleadings.
Document 17
18 The submissions made by Ms Hartley and Mr Pizer relevant to Document 17 are the same as those made in relation to Document 7.
19 The distinction between the two documents is that Document 17 is a letter written to the defendant from the Medical Practitioners Board. Ms Hartley submitted that it is likely to contain material regarding the defendant's conduct in treating the deceased, and therefore, it meets the test of relevance and must be released.
20 Mr Pizer asked me to look at Document 17 and to consider its contents in the light of the test. I have looked at it carefully and have concluded that it is not relevant in any sense and will be of no assistance to the plaintiff in relation to any of the issues defined in the pleadings.
Document 21
21 I will firstly turn to the submissions made by Mr Pizer relevant to the construction of s130(1) before turning specifically to Document 21. The section is in the following terms:
“ If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.”
22 Mr Pizer submitted that I may direct that the Agency not produce Document 21 if two conditions are met: namely, that the document relates to a matter of state; and, that the public interest in producing the document is outweighed by the public interest in preserving secrecy or confidentiality in relation to that document.
23 Mr Pizer then submitted that I should have regard to ss4(e) and (f), which are in the following terms:
“(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—
…
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f)prejudice the proper functioning of the government of the Commonwealth or a State.”
24 Mr Pizer firstly took me to ss4)(f). He submitted that the release of Document 21 will prejudice the proper functioning of government, in the sense that prejudice should be taken to mean impede or derogate from the proper functioning of government. He referred me to Royal Women's Hospital v Medical Practitioners Board of Victoria[3] and Deputy Commissioner of Taxation v Law Institute of Victoria Ltd.[4]Both are authority for the proposition that a body like the Agency can successfully claim public interest immunity depending upon the content of the documents to which the claim attaches.
[3](2006) 15 VR 22
[4][2010] VSCA 73
25 I do not see that it can be argued with any merit that the Agency is other than a body which can successfully claim public interest immunity. Rather, it was Ms Hartley's submission that the public interest immunity cannot attach to Documents 21 and 26.
26 What is abundantly clear from my careful reading of Document 21 is that it is an internal working document containing an analysis of material in the possession of an investigating officer whose analysis was conducted for a specific purpose; namely, in the conduct of the Agency’s primary function in regulating the conduct of health practitioners.[5]
[5]The manner in which the Agency conducts its statutory function is set out in detail in the affidavit of Ms Padman.
27 The conclusion I have reached is that to permit the release of Document 21 would be to prejudice the proper functioning of government.
28 I also refer to a submission made by Mr Pizer that the proper functioning of government is not limited to Cabinet or other high levels of the conduct of government, but includes the substrata of government which must include a body such as the Agency. Ms Hartley did not submit otherwise.
29 Furthermore, the release of Document 21 would disclose the identity of the officer of the agency who conducted the analysis. That might lead to an impairment of the capacity of such an officer to conduct his/her affairs in connection to those of the Agency effectively.
Document 26
30 The submissions made by Ms Hartley and Mr Pizer relevant to Document 26 are the same as those made in relation to Document 21.
31 I have reached the same conclusions in relation to Document 26 as I have in relation to Document 21, and in particular, I refer to paragraphs 26 to 29 above.
Conclusion
32 Firstly, I conclude that each of the two conditions referred to in s130(1) have been met by the Agency.
33 Secondly, that neither Documents 21 nor 26 are to be released to the plaintiff.
34 Thirdly, that neither Documents 7 nor 17 are to be released to the plaintiff.
35 I will reserve the question of costs to be determined at a later date upon application by the parties on written notice to one another and to my Associate.
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