Whioke v Baytech Traders Pty Ltd

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION OF COURT

Case No. K13250861

PURO WHIOKE	Plaintiff
v
BAYTECH TRADES PTY LTD	Defendant

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MAGISTRATE:	M HOARE
WHERE HELD:	MELBOURNE
DATE OF APPLICATION:	11 JUNE 2020
DATE OF DECISION:	22 JUNE 2020
CASE MAY BE CITED AS:	WHIOKE V BAYTECH TRADERS PTY LTD
MEDIUM NEUTRAL CITATION:	[2020] VMC013

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CATCHWORDS – Workers Compensation – Termination of Claim for Weekly Payments and Medical and Like Expenses - Third Party Access to Medicare Records and Prior Employers’ Personnel Records – Objection to Subpoenas - COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020, Part 9 – Civil Procedure Act 2010, Part 2.3 – Workplace Injury Rehabilitation and Compensation Act 2013.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Arnold Thomas Becker
For the Defendant	Minter Ellison

HER HONOUR:

Introduction and Overview

The issue for decision relates to the plaintiff Mr Whioke’s objection to the release of documents in respect of three subpoenas issued by the defendant Baytech Trades Pty Ltd (‘Baytech’). One of the subpoenas is addressed to Medicare (‘the Medicare subpoena’). The other two are addressed to previous employers of Mr Whioke namely, Americold Logistics Ltd and Emergent Cold Pty Ltd (‘the prior employer subpoenas’).
The subpoenas were issued in the context of workers’ compensation statutory benefits proceedings. Mr Whioke claims weekly payments of compensation and medical and like expenses in acccordance with the Workplace Injury Rehabilitation and Compensation Act 2013. His claim for compensation arises out of back and neck injuries sustained on 20 September 2018 in the course of his employment with Baytech (‘the accepted injuries’). The claim was accepted initially but terminated subsequently by the WorkCover Authorised Agent on the grounds that Mr Whioke’s injuries had resolved and/or that he was no longer unfit for work and/or that the claimed medical and like expenses are not for an injury which entitles Mr Whioke to compensation.
Both parties consented to the subpoena objections being decided in Chambers under Part 9 of the COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020. Accordingly, both parties filed and served written submissions.
Two additional subpoenas were issued by the defendant addressed to medical clinics where Mr Whioke was treated for the accepted injuries namely, Sonic Health Plus and 755 Sayers Road Medical Centre. The plaintiff did not object to the release of documents under those subpoenas.

Defendant’s Submissions

The defendant filed and served submissions dated 9 June 2020.
The records sought to be accessed by Baytech are as follows:
·Under the Medicare subpoena, documents and records including a Medicare claims history and statement of benefits for the period from 1 January 2010 to date.
·Under the prior employer subpoenas, full personnel files for Mr Whioke including ‘wage records, time sheets, clock cards, induction training and any other information’.
The defendant’s submissions set out the applicable law governing objections to subpoenas in respect of which the plaintiff’s submissions take no issue. Baytech acknowledges that in order to succeed in overcoming Mr Whioke’s objections it must identify a ‘legitimate forensic purpose’ for which access to documents is sought. The defendant also must establish that it is ‘on the cards’ that the documents will materially assist its case. The defendant refers to the well-established principles set out in R v Saleam (No 2) [1999] NSWCCA 86 and by his Honour Justice J Forrest in The Commissioner of the Australian Federal Police v Magistrates Court of Victoria & Ors [2011] VSC 3 at [28].
The defendant’s submissions set out the background facts of the case and also what summarises what it says is the currently available medical evidence. The defendant contends (wrongly according the plaintiff) that Mr Whioke ‘has not served any medical material to support his case’.
According to the defendant’s submissions, Mr Whioke commenced employment with Baytech on 3 September 2018 and sustained the accepted injuries on 20 September 2018, which was ‘barely more than two weeks after he commenced employment’. The submissions also set out histories obtained from Mr Whioke by independent medical examiners for the defendant (which I will not repeat here) in reports as follows:
·Dr Angus Forbes dated 4 December 2018
·Dr Sam Soliman dated 21 March 2019
·Dr David Elder (report date not provided).
1. The submissions then provide considerable detail as to the history of Mr Whioke’s consultations and treatment for the accepted injuries (which I will also not repeat) as derived from subpoenaed clinical records of 755 Sayers Road Medical Centre and Sonic Health Plus.
2. In relation to the prior employer subpoenas, the defendant submits at paragraph [15] that a detailed account of previous complaints of back or neck pain during past employment would be ‘essential’ to determination of the plaintiff’s case and that it would be ‘on the cards’ that information as to the nature of previous employment or pre-existing injury or prior complaints of injury would assist the defendant. It relies on the following points:
·     there is an apparent inconsistency in Mr Whioke having on the one hand provided histories to the independent medical examiners of no prior history of back trouble and on the other hand complaining to his GP Dr Shahzad on 24 September 2018 of ‘neck and upper back pain for y[ea]rs…’
·     The close proximity between commencing employment with Baytech and sustaining the accepted injury.
·     Mr Whioke’s past history of heavy warehouse-based work pre-dating his employment with Baytech.
·     The prior employers were identified by the defendant due having been listed by Mr Whioke in his impairment benefits form.
1. In relation to the Medicare subpoena, the defendant submits at paragraph [16] that the clinical records which it has now accessed (of Sonic Health Plus and 755 Sayers Road Medical Centre) contain no reference to the Oxycodone medication which Mr Whioke had informed Dr Elder had apparently been prescribed for him. Further, the defendant says it has ‘no idea’ of any of Mr Whioke’s physiotherapists, chiropractors or other allied health providers.
2. The defendant asserts therefore it has a legitimate forensic purpose in pursuing the Medicare subpoena and the prior employer subponeas that are the subject of this application and that it is ‘on the cards’ that the documents in each of the three subpoenas would be of assistance to the defendant’s case.
3. The defendant seeks its costs of the application and further alleges that the plaintiff’s objection to the subpoenas is ‘clearly in breach’ of the Civil Procedure Act 2010 and specifically the overarching obligations to only take steps to resolve the dispute (s.19), to cooperate (s.20) and to ensure costs are reasonable and proportionate (s24).

Plaintiff’s Submissions

15.The plaintiff filed and served submissions dated 10 June 2020 in response to the defendant’s submissions. The plaintiff’s submissions also annex correspondence between the parties relating to the three subpoenas.
16.The plaintiff’s solicitors assert that the defendant’s submissions ‘are replete with errors’ as to what has occurred between the parties in the proceedings including:
·That the plaintiff had not served any medical material whereas the plaintiff had served various medical reports and material by dated 6 April 2020;
·That the defendant had ‘no idea’ as to the identify of allied health providers when the plaintiff’s solicitors had served material including a report of a physiotherapist.

17.In relation to the prior employer subpoenas, the plaintiff submits these subpoenas were issued without a legitimate forensic purpose and constitute a fishing expedition. The plaintiff submits the prior employer subpoenas were issued simply based on Mr Whioke having listed past employers in response to a mandatory question in his impairment benefits form. The plaintiff’s submissions also refer to correspondence from the defendant’s solicitors dated 19 February 2020 which asserts that the subpoenas are ‘directly relevant to the issues of causation and capacity for work’. However, the defendant has failed to state specifically how that may be so.
18.In relation to the Medicare subpoena, the plaintiff also submits this subpoena has no legitimate forensic purpose and also constitutes a fishing expedition on the part of the defendant. The plaintiff refers to the defendant’s solicitors’ correspondence of 19 February 2020 in which the defendant states the purpose of the Medicare subpoena is to ‘identify the plaintiff’s treating doctors’. The plaintiff submits that the defendant has taken a ‘disingenuous approach’ in respect to the the Medicare subpoena given it was issued at an early stage of the proceedings (four weeks after the defence was served) and the defendant has never requested details from the plaintiff’s solicitors as to treating medical practitioners ‘consistent with’ Practice Direction No 1 of 2012.
19.The plaintiff seeks to have all three subpoenas set aside by the Court and seeks its costs.

The Law

20.The burden of proof lies with the defendant as the party seeking the documents. In the event the defendant fails to discharge the onus, the subpoenas must be set aside.
21.The well-established principles that apply to determining subpoena objections are, as the defendant submits, in accordance with the authorities of R v Saleam (No 2) [1999] NSWCCA 86 and the statement of his Honour Justice J Forrest in The Commissioner of the Australian Federal Police v Magistrates Court of Victoria & Ors [2011] VSC 3 at [28].
22.In order to discharge the onus, it is necessary for the defendant to identify a legitimate forensic purpose and to do so ‘expressly and precisely’. The defendant must also satisfy the court that it is ‘on the cards’ or a ‘reasonable possibility’ that the documents sought will materially assist the case for the defence.

Analysis

23.In approaching the task of identifying whether a legitimate forensic purpose exists in respect of the subpoenas, I have considered the written submissions of the parties including correspondence between solicitors which was annexed to the plaintiff’s submissions. In accordance with the guiding principles in The Commissioner of the Australian Federal Police, I have not inspected the documents sought to be produced.
24.Firstly, in relation to the prior employer subpoenas, the defendant has submitted that a detailed account of prior complaints of back or neck pain would be ‘essential’ to the Court’s role in determining the matter. However, other than making that broad assertion, I consider that the defendant has failed to precisely and expressly identify a legitimate forensic purpose in seeking the full personnel records of these prior employers. It is insufficient to rely on Mr Whioke having listed those past employers on his impairment benefits claim form and because of a history to independent medical examiners of past manual work and it being only a matter of weeks between starting work with Baytech and sustaining the accepted injuries. Whilst, as previously noted, the defendant’s submissions refer to a history given by Mr Whioke to his GP of back trouble for years, there is, in my view, nothing articulated by the defendant that establishes a legitimate forensic purpose in accessing full personnel records of these prior employers.

Furthermore, the defendant has failed to establish how the class of documents listed in the prior employer subpoenas, namely full personnel records including ‘wage records, time sheets, clock cards, induction training and any other information’ have a ‘reasonable possibility’ of assisting its defence. It is not even clear how such documents would be relevant to the proceeding given the matters in dispute. Whilst the defendant has asserted in correspondence to the plaintiff’s solicitors that the subpoenas relate to ‘causation and capacity for work’, on the material before me, there has been no articulation by the defendant as to how that may be so.

26.I find that the defendant has failed to discharge the burden of proof in identifying expressly and precisely a legitimate forensic purpose in respect of the prior employer subpoenas nor how it is ‘on the cards’ that the defence would be assisted by the documents to which access is sought.

Secondly, in relation to the Medicare subpoena, the defendant seeks access to Mr Whioke’s full Medicare records including a Medicare claims history backdated to 1 January 2010. The defendant submits that its purpose in seeking access to these records is to fill in apparent gaps identified in the clinical records to which it has already had access such as to the identity of the practitioner that prescribed Oxycodone and the identity of treating allied health practitioners.
However, the defendant’s solicitors issued the Medicare subpoena concurrently with the those issued on the two medical clinics and certainly therefore had not reviewed those records prior to the issue of the Medicare subpoena. In response to the plaintiff’s solicitors request as to the basis for the Medicare subpoena, the defendant’s solicitors in correspondence dated 19 February 2020 stated: ’While the defendant has subpoenaed Sonic Health Plus and 755 Sayers Road medical Centre … it is unclear at this stage whether the records of these clinics will provide a complete clinical history relevant to the plaintiff’s alleged injuries’.
The issuing of the Medicare subpoena at that stage of the proceeding was therefore, in my view, a fishing expedition on the part of the defendant. As the defendant correctly states in its submissions at paragraph 11, ‘a mere suspicion that the subpoenaed documents will or may assist the subpoenaing party will not be enough to satisfy the test’.
The plaintiff submits that the defendant has at no stage elected to seek details from the plaintiff of medical practitioners ‘consistent with’ Practice Direction No. 1 of 2012. Paragraph 5 of that Practice Direction states that the defendant may request the identify of treating practitioners ‘upon which the plaintiff relies’. Whilst the Practice Direction refers to the Accident Compensation Act 1985 in its heading and this proceeding is brought under the Workplace Injury Compensation and Rehabilitation Act 2013, it remains current in terms of the conduct of proceedings in the WorkCover Jurisdiction of the Magistrates’ Court. The defendant therefore may request information as to the identify of medical and allied health practitioners who have treated Mr Whioke’s injury by making a direct request of the plaintiff’s solicitors. The two clinics from which it has obtained records were apparently identified from Mr Whioke’s certificates of capacity.
Of course, from a defendant’s perspective, the limitation of paragraph 5 of the Practice Direction is that it refers to the identify of treating practitioners ‘upon which the plaintiff relies’. A defendant’s case may well at times be assisted by seeking access to records of treating practitioners upon whom the plaintiff does not rely. However, in my view, at the time the defendant issued the Medicare subpoena it lacked any legitimate forensic purpose for doing so and did so based on speculation only.
As noted earlier, the Medicare records sought are for the period from 1 January 2010. The defendant has made no submission as to the significance of the date of 1 January 2010, being some eight years prior to the accepted injuries. The defendant has, in its submissions, referred to an apparent inconsistency between the history recorded by Mr Whioke’s GP of back trouble for years and the history obtained by independent medical examiners as to the existence or otherwise of prior back troubles. I also note that, whilst not making the point in its written submissions, the defendant did advise the plaintiff’s practitioners in email correspondence dated 2 June 2020 that the clinical records of the two clinics to which already has access do not record attendances prior to September 2018 (except for isolated attendances on May 2016).
However, the defendant still did not request that the plaintiff identify the treating practitioners before or subsequent to Mr Whioke’s subject injury. Rather, the defendant elected to pursue the issuing of the Medicare subpoena which was, as I have said, in my view, a fishing expedition based on speculation and lacked a legitimate forensic purpose.
In my view for the reasons outlined, the defendant has failed in to identify expressly and precisely the legitimate forensic purpose that would be served by permitting access to the plaintiff’s entire Medicare history for some eight years prior to the injury.
The defendant has raised the Civil Procedure Act in its submissions and has alleged breaches by the plaintiff’s solicitors of their obligations under various provisions of the Act. On the material currently before me, I am of the view the defendant has alleged such breaches without foundation. Indeed, the defendant’s solicitors’ own approach has been disingenuous at best and may well be said to fall short of their own obligations under the Civil Procedure Act, for example, in relying in its submissions on matters that were plainly incorrect such as the plaintiff having provided no medical material when it had done so. Throughout the several months that have elapsed since the subpoenas were issued, on the material before me, there appears to have been an absence of reasonable endeavour on the part of the defendant to resolve the dispute that had arisen between the parties as to the exchange of, and access to, medical and other material.
Part 2.3 of the Civil Procedure Act makes clear the overarching obligations of parties to litigation which are: to cooperate with each other (s.20); to use reasonable endeavours to resolve disputes (s.22); to narrow the issues in dispute (s.23); to disclose the existence of all documents of which a party is aware and which the person considers, or ought reasonably consider; are critical to the resolution of the dispute.
In my view, in proceedings of this kind, the overarching obligations make it incumbent on parties to cooperate in identifying and exchanging material including medical material relevant to proceedings. In relation to the identifying of medical and allied health practitioners who have treated the plaintiff, the obligations under the Civil Procedure Act to which I have referred mean that may well – particularly if requested - extend to a broader list of treating practitioners than the simply those the plaintiff relies upon as provided by paragraph 5 of the Practice Direction No 1 of 2012.

Conclusion

38.For the reasons outlined, I find that the defendant has failed to discharge the onus in respect of all three subpoenas to which the plaintiff objects. The subpoenas must therefore be set aside.
39.I order that the defendant pay the plaintiff’s costs of the interlocutory application.

[2020] VMC 13

22 JUNE 2020