Yabsley v MLC Limited - [2017] NSWSC 832

Supreme Court

New South Wales

Medium Neutral Citation: Yabsley v MLC Limited [2017] NSWSC 832
Hearing dates: 16 June 2017
Date of orders: 16 June 2017
Decision date: 16 June 2017
Jurisdiction: Equity
Before: Parker J
Decision:
Direction made that first plaintiff complete and execute a Power of Attorney in favour of defendant’s Saudi Arabian lawyers to obtain access to records of first plaintiff’s medical procedure in Saudi Arabia.
Plaintiffs to provide executed and completed Power of Attorney document to defendant authorising defendant to request first plaintiff’s medical records.

Catchwords: Civil Procedure – insurance claim – critical illness benefit – medical records from hospital overseas – subpoena – international comity – Uniform Civil Procedure Rules 2005 (NSW), r 2.1 – order for execution of power of attorney
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 11.8AB
Cases Cited: Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545
Merkuloff v Yalisheff [2003] NSWSC 1183
Category: Procedural and other rulings
Parties: Michael Yabsley (First Plaintiff)
Susan Yabsley (Second Plaintiff)
MLC Limited (Defendant)
Representation:
Counsel:
P Clingan (First and Second Plaintiff)
JG Duncan (Defendant)
Solicitors:
Slater & Gordon Lawyers (First and Second Plaintiff)
Norton Rose Fulbright Australia (Defendant)

File Number(s): 2015/241480
Publication restriction: Nil

Judgment – EX TEMPORE

This case is before the Court as a result of the defendant's application under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 2.1 which is the Court's general power to make directions and orders for the conduct of proceedings.
The defendant is the insurer under a personal protection policy issued to the first plaintiff. The plaintiffs, who are husband and wife, claim payment of what is described as a critical illness benefit on the basis of "major brain injury" allegedly suffered by the first plaintiff. The benefit is in the order of $1 million.
The "major brain injury" is said to consist of cognitive impairment and dysfunction described colloquially as "cotton-wool head". The condition allegedly developed after the first plaintiff underwent eye surgery at Jeddah in Saudi Arabia in December 2010.
In December 2011 the first plaintiff wrote to Dr Khaled Shalaby of the Dr Soliman Fakeeh Hospital in Jeddah. Dr Shalaby was the surgeon who had been responsible for conducting the surgery in question.
The first plaintiff’s letter stated.

… [T]he matter where you may be able to assist, relates to the possible consequences of the anaesthetic used in the surgery in Jeddah. This has been characterised to me medically as "post anaesthetic neuro dysfunction" about which I have read some available material. This material confirms that such consequences may occur.
My understanding is that the surgery which was to take approximately one hour in fact became a four hour procedure during which I was under general anaesthetic for the duration.
The sole purpose for my enquiry is to identify a possible cause of the "woozy head" and the chronic debilitating symptoms associated with it. Frankly I simply wish to obtain any information that may guide…

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] NSWSC 832
Decision Date: 16 June 2017

CaseChat Overview and Summary

In the case of Yabsley v MLC Limited, the plaintiff sought to claim a critical illness benefit under an insurance policy. The plaintiff had been diagnosed with a severe medical condition and sought to have medical records from a hospital in the United States admitted as evidence. The case was heard in the Supreme Court of New South Wales, where the defendant, MLC Limited, contested the admissibility of these records, citing concerns over international comity and the court's jurisdiction to compel production of documents held overseas.

The central legal issue before the court was whether it had the authority to issue a subpoena for the production of medical records held by a hospital in the United States and whether such a subpoena would be consistent with the principles of international comity. The court also needed to determine if there was an alternative mechanism, such as executing a power of attorney, to obtain the necessary medical records without contravening international legal norms.

The court considered the relevant provisions of the Uniform Civil Procedure Rules 2005 (NSW), particularly rule 2.1, which sets out the circumstances under which the court may order the production of documents. It was noted that while the court has broad powers to compel the production of documents within its jurisdiction, it must also respect the sovereignty of other nations. The court found that issuing a subpoena for documents held overseas would likely infringe upon the sovereignty of the United States and therefore be contrary to the principles of international comity. Consequently, the court determined that it should not compel the production of the medical records through a subpoena but instead should seek alternative means, such as executing a power of attorney, to obtain the necessary documents.

The court issued an order directing the plaintiff to execute a power of attorney in the United States, enabling the hospital to release the required medical records to the court for the purposes of the insurance claim. This approach was deemed to be consistent with international legal principles while still allowing the plaintiff to present the necessary evidence to support their claim for critical illness benefits.

Orders