Greenbaum v Southern Cross Hospitals Ltd - [2019] NZCA 438

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA358/2018
[2019] NZCA 438

BETWEEN	ADAM RAPHAEL GREENBAUM Appellant
AND	SOUTHERN CROSS HOSPITALS LIMITED Respondent

Hearing:	27 November 2018
Court:	Williams, Peters and Gendall JJ
Counsel:	J Long and J K Grimmer for Appellant A S Ross QC and L C Bercovitch for Respondent
Judgment:	18 September 2019 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant must pay the respondent’s costs for a standard appeal on a band A basis with usual disbursements.

____________________________________________________________________

REASONS

Peters and Gendall JJ [1]
Williams J [81]

PETERS AND GENDALL JJ

(Given by Peters J)

Introduction

The appellant, Mr Greenbaum, appeals against a decision of Toogood J in which the Judge dismissed his application for non-party discovery from the respondent, Southern Cross Hospitals Ltd (Southern Cross).[1]
[1]Greenbaum v Waikato District Health Board [2018] NZHC 1273 [High Court judgment]; and High Court Rules 2016, r 8.21.
Mr Greenbaum is a United Kingdom trained plastic surgeon. He and his family immigrated to New Zealand in 2009 and in 2010 he accepted a position with the Waikato District Health Board (WDHB). Differences developed between Mr Greenbaum and WDHB later that year, culminating in an agreement in December 2010 that Mr Greenbaum would resign from WDHB, which he did in early 2011 after obtaining vocational registration from the Medical Council of New Zealand (MCNZ). More detail about the background is set out below.
In 2011 and 2012, Mr Greenbaum applied to be “credentialled” to use the facilities of four private hospitals in the Waikato region, including one operated by Southern Cross. Each hospital declined to grant credentials to Mr Greenbaum.
Mr Greenbaum commenced this proceeding against WDHB and Dr Tom Watson (the defendants) in 2017. Dr Watson was the Chief Medical Advisor at WDHB at the time Mr Greenbaum sought credentials. The essence of Mr Greenbaum’s proceeding is that the private hospitals declined Mr Greenbaum credentials because the defendants interfered, unlawfully, in the credentialling process. The defendants deny the allegations.
Mr Greenbaum’s application for third party discovery, that is, the one Toogood J declined, was against Southern Cross and another of the private hospitals, Braemar Hospital Ltd (Braemar), seeking two categories of documents. The first category was “comparative material” to enable Mr Greenbaum to compare the manner in which the two hospitals determined his application for credentials with those made by third parties. Toogood J declined this application and there is no appeal against that aspect of the decision.
Secondly, Mr Greenbaum sought what was referred to as “evaluative material” concerning or referring to him. Braemar has no such documents but Southern Cross does. As we understand it, the documents comprise notes of discussions between Southern Cross personnel and Dr Watson and/or WDHB personnel, whether doctors, nurses or administrators, for whom MrGreenbaum contends WDHB would be vicariously liable. Southern Cross sought and received the information in confidence, having given an assurance of confidentiality based on a “waiver” in…

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: [2019] NZCA 438
Decision Date: 18 September 2019 at 10.00 am

CaseChat Overview and Summary

The Court of Appeal dismissed the appeal by Mr Adam Raphael Greenbaum against the decision of Toogood J, who dismissed Mr Greenbaum's application for non-party discovery from Southern Cross Hospitals Limited. Mr Greenbaum, a former employee of the Waikato District Health Board (WDHB) and a plastic surgeon, sought documents from Southern Cross and another private hospital, Braemar, to compare their credentialling processes. Southern Cross opposed disclosure, citing confidentiality. Toogood J ruled in favour of Southern Cross, and Mr Greenbaum appealed, arguing that the public interest in disclosure outweighed the public interest in maintaining confidentiality. The Court of Appeal disagreed, affirming that the public interest in maintaining the confidentiality of the credentialling process outweighed the public interest in disclosure in this case. The court found that the credentialling process was critical to patient safety, depended on the free flow of information, and would be hindered if there was a prospect of disclosure. The appeal was dismissed, and Mr Greenbaum was ordered to pay Southern Cross's costs for the appeal.

Orders