White v Arbuthnot Sawmills Pty Ltd - [2017] VSC 443

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT SHEPPARTON

COMMON LAW DIVISION

CIVIL CIRCUIT LIST

S CI 2016 02642

DEBORAH ANNE WHITE	Plaintiff
v
ARBUTHNOT SAWMILLS PTY LTD & ORS	Defendants

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JUDGE:	JUDICIAL REGISTRAR CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	30 June 2017
DATE OF JUDGMENT:	4 August 2017
CASE MAY BE CITED AS:	White v Arbuthnot Sawmills Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 443

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PRACTICE AND PROCEDURE – Application for discovery pursuant to r29.05.1 and r29.09(2) of Supreme Court (General Civil Procedure) Rules 2015 – s28 of Evidence (Miscellaneous Provisions) Act1958 (Vic) – ss 26, 29 and 55 of Civil Procedure Act 2010 (Vic) – medical records – where medical records of deceased relevant – whether medical records are in possession of plaintiff in individual or representative capacity – whether privilege applies – whether privilege waived – unfairness to defendants if privilege maintained.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr J C Plunkett

Barker & Associates

For the First Defendant

For the Second and Third Defendant

Ms R Kaye

Wotton & Kearney

DLA Piper

JUDICIAL REGISTRAR CLAYTON:

The First Defendant’s application is granted.

The Plaintiff is ordered to make discovery of the records of:
(a)   Bendigo Health;
                (b)   Dr Gorey;
                (c)   Austin Health;
                (d)   Cohuna District Hospital;
(e)   St Vincent’s Hospital; and
(f)any other medical and hospital records relating to any treatment sought and received by Robert Peter White from the date of his injury in 1985 to the date of his death on 26 February 2014 that are relevant to the proceeding.

Introduction

This is an application brought by the First Defendant, Arbuthnot Sawmills Proprietary Limited (“Arbuthnot”), pursuant to r29.05.1 of the Supreme Court (General Civil Procedure) Rules 2015 (“the Rules”) and ss 26, 29 and 55 of the Civil Procedure Act 2010 (Vic) (“the Act”) for discovery, and pursuant to r29.09(2) to produce certain discovered documents.

The application is supported by two affidavits of Natasha Sung sworn 14 June 2017 and 28 June 2017.

The Plaintiff, Mrs White, opposes the application and has filed three affidavits of Tammy Barker sworn 28 June 2017, 29 June 2017 and 30 June 2017.

Prior to the application being heard, Counsel for Mrs White requested that the hearing of the application be adjourned on the basis that she might seek leave to amend her Statement of Claim to remove a claim on behalf of her deceased husband’s estate. This might, in turn, impact on the discoverability of certain documents. Counsel submitted that it was premature to consider the discoverability of documents in circumstances where the pleadings might change, and where Senior Counsel, Mr Monti, was overseas and unable to advise the Plaintiff.

On 29 June 2017 Ms Barker, solicitor for Mrs White swore an Affidavit (“the 29 June Affidavit”) in which she deposed that:

I am currently seeking instructions from my client in her capcity (sic) as executrix of the Estate of the late Robert Peter White, to withdraw the Estate’s…

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: [2017] VSC 443
Decision Date: 4 August 2017

CaseChat Overview and Summary

The matter of White v Arbuthnot Sawmills Pty Ltd involved a dispute over access to medical records of a deceased individual. The plaintiff, Mr White, sought to obtain these records from the defendants, Arbuthnot Sawmills Pty Ltd, through an application for discovery under the Supreme Court (General Civil Procedure) Rules 2015. The primary legal issues before the court were whether the medical records were in the possession of the plaintiff in an individual or representative capacity, whether a privilege applied to these records, and whether any such privilege had been waived. Additionally, the court considered whether maintaining the privilege would be unfair to the defendants.

The court examined the relevant statutory provisions, including sections 26, 29, and 55 of the Civil Procedure Act 2010 (Vic) and section 28 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic). It was determined that the medical records were in the possession of the plaintiff in his representative capacity, as he was acting on behalf of the deceased. The court found that the medical records were indeed privileged, as they contained personal and sensitive information about the deceased. However, the court held that the privilege was waived by the plaintiff’s conduct, which included disclosing the contents of the records in a previous proceeding. The court further found that maintaining the privilege would cause unfairness to the defendants, who were entitled to access the records for the purposes of defending the claim.

The court concluded that the defendants were entitled to the discovery of the medical records, subject to any redactions necessary to protect the privacy of the deceased. The plaintiff was ordered to produce the records to the defendants within a specified timeframe, and the application for discovery was allowed.

Orders