Whitty v Unger (Ruling)

[2024] VCC 1617

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-22-05041

CATHERINE WHITTY	Plaintiff
v
ROSA UNGER	Defendant

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JUDGE:

HER HONOUR JUDGE MANOVA

WHERE HELD:

Melbourne

DATE OF HEARING:

17 and 18 September 2024 and 16 October 2024

DATE OF RULING:

18 September 2024 (unrevised)

18 October 2024 (revised)

CASE MAY BE CITED AS:

Whitty v Unger (Ruling)

MEDIUM NEUTRAL CITATION:

[2024] VCC 1617

RULING
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Subject:CIVIL PROCEDURE – SUBPOENA OBJECTION

Catchwords:              subpoena objection – objections hearing – objection made out of time – subpoena too wide – family dispute – undertaking to not disclose irrelevant matters – Practice Note PNCI 9-2021

Legislation Cited:      County Court Civil Procedure Rules 2018 (Vic), rules 2.01(1), 2.04, 42A.08(2) and 42A.10

Cases Cited:Harman v Secretary of State for Home Dept [1983] 1 AC 280

Ruling:  Application refused.

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APPEARANCES:	Solicitor Advocates	Solicitors
For the Plaintiff	Mr J P Tobin	Danaher Moulton Lawyers
For the Defendant	Mr R B McCredie	Mazzeo Lawyers

HER HONOUR:

Introduction

1Before me is an application by the plaintiff to object out of time to release, inspection and retention of documents retained by the plaintiff’s treating medical clinic under subpoena (‘the subpoena’). These documents were released to the defendant on 16 September 2024.

2The plaintiff seeks the subpoena be set aside and the documents returned and/or destroyed by the defendant. The basis for the objection is that the subpoena is too wide. In the alternative, the plaintiff seeks that her lawyers go through the documents and determine what is objectionable, and make their objections, out of time.

3The release, inspection and copying by the defendant of the medical file has already occurred. There was no irregularity associated with that inspection and release.

4The defendant submits that the plaintiff is too late to make her objection, that the subpoena was issued, served on the plaintiff’s lawyers on 9 August 2024 and no proper objection was raised to the subpoena or to the release of the documents for inspection by the defendant, until after the expiry of the 14 day period provided by rule 42A.08(2) of the County Court Civil Procedure Rules 2018 (“the Rules”).

Background

5On 25 November 2022, a Writ was filed in this court.

6The proceeding relates to an assault and battery alleged to have been committed on 27 November 2019 by the defendant upon the plaintiff. The two parties are related by marriage, the plaintiff was married to the defendant’s brother.

7The pleaded incident includes allegations that the defendant grabbed the plaintiff’s arms and left hand and grabbed the plaintiff’s three year old daughter with the plaintiff having to remove her daughter from the defendant’s grip.

8The plaintiff claims damages for left hand and thumb injury, psychological injury, loss of earnings and loss of earning capacity.

9The plaintiff also claims exemplary and aggravated damages.

10Based on the defence, it appears that it is not in dispute that an assault occurred on that day.

11On 8 August 2024 the defendant’s solicitors issued a subpoena to the Carlton Medical Centre.

12The schedule of documents set out in the subpoena provides that the following documents are sought for production:

“…all medical records, notes and medical reports and radiology held by you in electronic or hard copy format in relation to the treatment of Ms Catherine Whitty.”

13Paragraph 11 of the subpoena informs the plaintiff as follows:

“If you are the plaintiff in this proceeding and this subpoena seeks from another person the production of a hospital or medical file or record concerning you or your condition you may, before taking objection, inspect or copy the file or record produced. After inspecting, you may notify any objection you have to inspection or copying of that file or record by any other party, provided that you make your objection or copying and notify your objection and the grounds of that objection if any within 14 days after the day specified in the subpoena for production.”

(emphasis added)

14

The date for production of the nominated documents to the Registrar was

29 August 2024.

15This meant that the plaintiff was required to notify of any objection and the grounds for the objection within 14 days being from 29 August 2024 to 12 September 2024 (emphasis added).

16On 9 August 2024, the defendant’s solicitors served the subpoena (together with three other subpoenas) on the plaintiff’s lawyers (Mr James Tobin) by email.

17The screenshot of the court’s system exhibited to Mr Tobin’s affidavit sworn on 17 September 2024, shows that two requests for inspection were registered on 19 August 2024, ten days prior to the production date.

18I requested the registry to provide details of requests for inspection made, the dates they were made and the name of the party who made them. The email from the registry answering this inquiry dated 18 September 2024 was provided to the parties this morning in advance of the resumed hearing.

19The court’s registry confirmed that the second of the requests made on 19 August 2024 was a duplicate – submitted twice on the same date, at the same time and by the same account.

20The email from the registry also provided that four requests had been made by the defendant for inspection – on 29 August 2024, 3 September 2024, 12 September 2024 and 16 September 2024.  The first three had been rejected as the 14 day period within which the plaintiff had the right to inspect the documents had not elapsed.

21Based on the information from the Registry in the email on 18 September 2024, it does not appear that any request for inspection had been made by the plaintiff aside from the one on 19 August 2024.

22The affidavit of Mr Tobin exhibited emails sent on 13 September 2024, by the plaintiff’s solicitors to the Court’s registry, and responses to those emails,  sent by the registry as follows.

23On 13 September 2024, at 1:11pm solicitors for the plaintiff contacted the registry by email after having searched the court’s eCase system. The email queried whether the subpoena had been “rejected twice” on CITEC.

24At 1:29pm , the registry wrote to the plaintiff’s solicitors querying what was meant by “rejected twice” in CITEC.

25At 1:53pm, the plaintiff’s solicitors again wrote to the registry clarifying that what was meant was that Court Connect/cCase showed that the “subpoena” had been rejected twice and attached a screenshot.

26At 3:26pm, the registry wrote to the plaintiff’s solicitors explaining that the inspection requests were rejected as the production date had not yet elapsed. The registry also provided an instruction that the plaintiff’s solicitors must resubmit any inspection request once it has been rejected. They explained that eCase does not automatically release documents nor can the registry change past requests to “approved” and that “you must resubmit your request when appropriate to do so”.

27Mr Tobin submitted that the subpoena was too wide, the documents produced in the subpoena contained private and confidential material regarding medical procedures and other matters not relevant to the issues in the proceeding and sought leave to object out of time.

28Mr McCredie submitted that the plaintiff did not object in accordance with the Rules and that pursuant to r42A.10 of the Rules, if no objection was raised each party may inspect and copy the documents which is what occurred in this case.

29Mr McCredie indicated to the court that he has not disclosed the contents of the documents to his client and will not do so pending further order of the court. This was an appropriate way to approach the issue.

Analysis

30Since 30 August 2021, the Court has implemented eCase – an electronic system  which is “the Court’s preferred method for the submission of subpoena responses, objections, objection withdrawal, inspection requests and inspection itself”.[1]

[1]Practice Note PNCI 9-2021

31Practice Note PNCI 9-2021 (‘the Practice note’) was issued to practitioners informing them of the procedures to be adopted on issuing subpoenas. The practice note provides that practitioners are directed to use this system unless impractical to do so.

32Paragraph 1.5 of the Practice note provides:

Parties or their solicitor can use eCase to:

(a)  lodge an objection to the inspection of subpoena material and provide the ground/s for their objection; and

(b)  withdraw a previous objection.

33Paragraph 1.6 of the Practice note provides:

Parties or their solicitor can also use eCase to:

(a)  view subpoena material produced by an addressee (where permitted by the Rules and/or the Court);

(b)  download subpoena material produced by an addressee (unless otherwise ordered by the Court); and

(c)   make payments for inspection on Civil matters via eCase using a credit or debit card.

34Part 6 of the Practice note provides:

6.2A party in a civil proceeding can check whether documents have been produced to the Court in response to a subpoena via Court Connect.

6.3A party may request inspection of produced material via the “Inspect Subpoenaed Documents” page in eCase if the date for production has passed and there are no active objections.

6.4In accordance to Rule 42A.08 (2) of the Civil Rules, where a party other than the plaintiff has subpoenaed the production of medical records concerning the plaintiff, the plaintiff has a right to inspect before any other party. The plaintiff must do so within 14 days after the date for production. No other party should request an inspection during this time.

…

6.10Any person viewing or downloading documents via eCase is reminded of the continuing obligation to keep the documents secure and not use them for a collateral or ulterior purpose unconnected to the proceedings in which the subpoena was issued (the Harman obligation in law[2]). Examples of collateral or ulterior purposes include using the documents in different proceedings, using the documents for a business reason, or disclosing the information in documents to persons unrelated to the proceeding.

(emphasis added)

[2] Harman v Secretary of State for Home Dept [1983] 1 AC 280.

35On 16 September 2024, the solicitors for the defendant inspected the documents.

36This inspection occurred 4 days after the expiry of the 14 day period within which an objection had to be raised by the plaintiff.

37The plaintiff seeks an order allowing the objection to be raised out of time and the subpoena to be set aside. The plaintiff concedes that there has been no compliance with the Rules.

38Pursuant to r2.01(1) of the Rules, a failure to comply with the Rules is an irregularity and does not render a proceeding or step taken a nullity. The court may set aside any step taken in a proceeding or any document, judgment, or order in the proceeding and exercise its powers under these Rules to allow amendments and to make orders dealing with the proceeding generally.

39Pursuant to r2.04 of the Rules, the court may dispense with compliance with any part of the Rules either before or after the occasion for compliance arises.

40Mr Tobin confirmed that he had received the copy subpoena on 9 August 2024 but submitted that they had only recently obtained instructions to object to the subpoena.

41The 14 days within to object is there for the benefit of the plaintiff. 

42I do not consider that the late obtaining of instructions is a proper grounds for dispensing with the requirements of the Rules.

43It is also not clear how the instructions were late because a request was sent by the plaintiff’s solicitors for inspection on 19 August 2024 (twice) and rejected by the portal. It is not clear why no other attempts were made until after the expiry of the 14 day period, why there was no contact with the registry lodging an objection to the subpoena itself as soon as a copy of it had been served on the plaintiffs solicitor.

44It is incumbent on solicitors acting for plaintiffs to ensure they receive instructions in a timely way. If a subpoena is too wide, an objection ought to have been issued as soon as the copy subpoena was provided. If there was an objection as to the contents of the documents to be released, that ought to have been done in the time allocated by the Practice note as release of documents for inspection is automatic where no objection is raised.

45The documents have now been released in accordance with the Rules and the court’s practice note.

46I take into account that the parties are members of the same family and that material may be contained in the documents which may impact on the Plaintiff’s relationship with members of her family.

47I consider an appropriate remedy is to ask for the solicitor to provide undertakings not to disclose to his client personal matters contained in the notes which are not relevant to the proceeding.

48I have provided the parties with an opportunity to agree to those matters and subsequently received submissions on any extant issues in dispute at the directions hearing on 16 October 2024

49I invited the plaintiff’s solicitors to outline those matters and to ask for the defendants solicitor to provide an undertaking to the court. I made orders on 16 October 2024 disposing of the issues raised by the parties. Otherwise all other objections based on relevance will be matters to be resolved by the trial judge.

Costs

50The defendant issued a subpoena which on one view was too wide given the issues in dispute. The defendant otherwise complied with the rules and obtained release of the documents without irregularity.

51The plaintiff did not comply with the rules and made her application out of time.

52The hearing has been necessitated in part by the wide nature of the subpoena.

53I order that each party bear its own costs of this application.

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