Shahid v Australasian College of Dermatologists [2005] FCA 818

FEDERAL COURT OF AUSTRALIA

Shahid v Australasian College of Dermatologists [2005] FCA 818 KIRAN RUBINA SHAHID v AUSTRALASIAN COLLEGE OF DERMATOLOGISTS WAD 53 of 2004 NICHOLSON J 31 MAY 2005 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 53 OF 2004

BETWEEN: KIRAN RUBINA SHAHID

APPLICANT

AND: AUSTRALASIAN COLLEGE OF DERMATOLOGISTS

RESPONDENT

JUDGE: NICHOLSON J

DATE OF ORDER: 31 MAY 2005

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The applicant's notice of motion dated 24 May 2005 be granted. 2. Leave be given to the applicant in terms of paragraph 1 of the motion to issue a subpoena to the Royal Perth Hospital in accordance with the draft subpoena for the production of documents specified in the schedule to the proposed subpoena. 3. There be delegated to the Registrar authority to make directions concerning the condition on which the documents may be inspected or uplifted and copied by any party. 4. Costs be in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 53 OF 2004

BETWEEN: KIRAN RUBINA SHAHID

APPLICANT

AND: AUSTRALASIAN COLLEGE OF DERMATOLOGISTS

RESPONDENT

JUDGE: NICHOLSON J

DATE: 31 MAY 2005

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant brings a notice of motion seeking leave to issue a subpoena to the Royal Perth Hospital ('the Hospital') for the production of documents which are specified in the schedule to the draft of the proposed subpoena. 2 The documents which would be sought by the subpoena would essentially be the files of the Hospital in relation to the applicant regarding her applications for the Hospital's rotating trainee registrar positions in dermatology in the years 2001 to 2004 inclusive. 3 The application is one which seeks declarations in respect of the conduct of the respondent in relation to that selection process in the years to which I have referred. In its terms, the application, as it presently stands, is directed to the respondent. In the amended statement of claim which supports it, it is alleged, for example, that the applicant applied for the position to the Hospital; that the Hospital acknowledged the application; and that the Hospital was otherwise involved in the selection process. I have been taken to other paragraphs in the amended statement of claim where no specific reference presently appears in relation to the Hospital but where it is said that in particulars or in the way in which the evidence will be presented at trial it will be asserted that certain actions, such as those informing the applicant of the outcome of her application, were taken by the Hospital. It is apparent therefore on the terms of the application and the amended statement of claim that the role of the Hospital in relation to the applicant in connection with the selection procedures is in issue. 4 The defence to the applicant's amended statement of claim pleads, for example, that individual dermatologists employed by public teaching hospitals supervise and conduct the training of the trainee registrars in dermatology in accordance with curriculum training standards set by the respondent. Further, it is said that a recommendation by the respondent to a public teaching hospital may be declined by that hospital. Additionally, it is pleaded that individual fellow dermatologists employed by the public teaching hospitals provide training to trainee registrars; that is, the defence pleads a more limited role for the respondent and likewise puts in issue the nature of its role vis-a-vis the relevant hospital, which in the case of the applicant is the Royal Perth Hospital. 5 The respondent is concerned that if the subpoena is issued the timetable for progress of the litigation, presently the subject of order 2 made on 28 April 2005, will be disturbed. That is a matter which, as the applicant submits, is something to be faced when it occurs. 6 The respondent also submits that grant of leave to issue a subpoena is something which should not be considered until discovery has been given by the respondent pursuant to order 2(d) which requires such discovery to be given on or before 17 June 2005. In response to that the applicant submits that the role of the Hospital extended beyond the role of the respondent so that it would not be proper to assume that the results of the discovery will properly inform the litigation in relation to the role of the Hospital. Having been taken to the pleadings, I accept that submission. It is apparent that the advertisements for the position were placed by the Hospital and that the Hospital played a role in other respects in relation to the applications, at least as far as the pleadings are concerned. Therefore I am satisfied that the advancement of the litigation would be best served by not leaving the subpoena of evidence until after the discovery from the respondent. 7 I am informed that the applicant gives an undertaking to pay to the Hospital, if the subpoena were to issue, the reasonable costs of compliance. 8 I am also informed by the applicant that the Hospital has advised the applicant's solicitor that it would comply with the subpoena subject to reserving its position on any matters that arose for legal submission. 9 There is the question of the date and time for compliance with the subpoena and the consideration of that date and time in conjunction with the present directions for advancement of the application. I will consider that matter upon being informed by the applicant of the Hospital's estimate of time that would be required to assemble the papers in the subpoena. 10 It follows from the reasons I have given that I consider that the pleadings, the nature of the litigation and the alleged involvement of the Hospital make appropriate the grant of leave to issue the subpoena for the production of the documents referred to in the draft proposed subpoena. Again I say that this does not in any way limit the capacity of the Hospital to claim any issue of legal significance and evidentiary concern for argument upon production of the documents. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.