FEDERAL COURT OF AUSTRALIA King v Australian Pharmaceutical Industries Ltd [2011] FCA 95 Citation: King v Australian Pharmaceutical Industries Ltd [2011] FCA 95 Parties: ROBYN KING v AUSTRALIAN PHARMACEUTICAL INDUSTRIES LIMITED File number(s): NSD 43 of 2010 Judge: KATZMANN J Date of judgment: 8 February 2011 Catchwords: PRACTICE & PROCEDURE – subpoena for production of documents – objection – scope – relevance. Legislation: Fair Work Act 2009 (Cth) s 340, s 546 Cases cited: Brand v Digi-Tech (Aust) Ltd [2001] NSWSC 425 GB (By His Tutor), FB v Western Sydney Area Health Service [2010] NSWSC 181 The Food Improvers Pty Ltd & Anor v BGR Corporation Pty Ltd & Ors (No 2) (2006) 155 FCR 216 Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 Date of hearing: 8 February 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 17 Solicitor for the Applicant: Ms S Ryan of Turner Freeman Solicitor for the Respondent: Ms J Sutherland of Blake Dawson IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 43 of 2010 BETWEEN: ROBYN KING Applicant AND: AUSTRALIAN PHARMACEUTICAL INDUSTRIES LIMITED Respondent JUDGE: KATZMANN J DATE OF ORDER: 8 FEBRUARY 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraph 1 (d) of the schedule to the subpoenas issued to the following persons is amended so as to limit the production of the documents referred to in it to documents made or generated from 8 October 2008: (a) Dr Heba Mankarious; (b) Dr Jane Elizabeth Thomson; (c) Dr Martine Anne Walker; (d) The Mosman Practice. 2. The notice of motion is otherwise dismissed. 3. Until further order, production of documents on subpoena to the above persons or entities is restricted to the applicant, the legal representatives of the parties and experts they retain for the purpose of the proceeding. The applicant is to have first access. 4. The applicant is to pay the respondent's costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 43 of 2010 BETWEEN: ROBYN KING Applicant AND: AUSTRALIAN PHARMACEUTICAL INDUSTRIES LIMITED Respondent JUDGE: KATZMANN J DATE: 8 FEBRUARY 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant, Robyn King, alleges that the respondent ("API") breached s 340 of the Fair Work Act 2009 (Cth). The substance of her complaint is that she has been the victim of workplace bullying and harassment, in particular, by her immediate supervisor. Amongst the orders she seeks are compensation under s 546 of the Act and damages for breach of contract and in tort. The loss and damage particularised in her statement of claim includes distress and anxiety. In its defence API denies that she is entitled to any relief or that she has suffered any loss or damage. 2 On 22 December 2010, at the request of API, the Court issued a number of subpoenas. By notice of motion filed on the return date (2 February 2011) Ms King seeks to have four of them set aside. They are subpoenas directed to three medical practitioners, who have treated Ms King, and the medical practice where the treatment took place. In substance, each of them requires the production of: All records concerning the applicant … including but not limited to all records of all consultations, examinations, treatments or tests, including all: (a) records, cards, notes, treatment files, files, letters, memoranda and any similar written documents; (b) clinical notes, nurses' notes, history sheets, operation notes and reports, and discharge summaries; (c) referrals, reports, and information provided by other medical professionals, and allied health professionals; (d) accounting records and fee cards; (e) X-rays or scans of reports on them, including (but not limited to) CTs and MRIs; (f) requests for and results of all investigations, including (but not limited to) pathology, microbiology, ECGs and EEGs; and (g) printouts of all computer data, and any other data, such as microfiche which can be reduced to writing. 3 In a letter sent to API's solicitors on 6 January 2011 Ms King's solicitors set out their objection: We object to the terms of the subpoenas due to their broad nature. The subpoenas should be confined to the period from 7 September 2009 to the present. The subpoenas should also be confined to our client's psychological injury. Our client's unrelated medical history is not of relevance to this matter. This correspondence does not relate to the right of the subpoenaed party to themselves set aside the relevant subpoena on the basis that it is oppressive or on any other ground. 4 I pause to observe that no such application has been made. 5 By letter dated 20 January 2011 Ms King's solicitors did not press their objection to records relating to the period before 7 September 2009 but maintained their objection to the production of medical records other than those pertaining to a psychiatric illness or impairment on the ground that such records were "simply not relevant to the current proceeding". 6 On 28 January 2011 Ms King's solicitors sent API's solicitors a copy of a letter they wrote to the registry of this Court in which they stated: The basis of the Applicant's objection is that the subpoenaed material will include medical records which are of no relevance to the current proceedings, and some of which significantly pre-date the Applicant's employment with the Respondent, which is the subject of the current proceedings, noting that the Respondent has not nominated a period of time in which the records are said to be relevant. In these circumstances, the Applicant contends that inspection of the material would constitute an unnecessary invasion of her personal privacy. 7 Specific objection was taken to records in nine categories, namely: (a) All references to sexual health, genital examinations, tests, procedures, diagnoses and comments thereon; (b) All references to colorectal examinations, tests, procedures, diagnoses and comments thereon; (c) All references to breast examinations, tests, procedures, diagnoses and comments thereon; (d) All references to skin lesions, cysts or diseases, including examinations, tests, procedures, diagnoses and comments thereon; (e) All references to legs and feet, including examinations, tests, procedures, diagnoses and comments thereon; (f) All references to arms and hands, including examinations, tests, procedures, diagnoses and comments thereon; (g) All references to ears and eyes, including examinations, tests, procedures, diagnoses and comments thereon; (h) All references to bone density, including examinations, tests, procedures, diagnoses and comments thereon; and (i) All references to medications for treatment of conditions associated with any of the above. 8 API maintains that the information is relevant. By letter from their solicitors dated 11 January 2011 it refused to confine the subpoenas to the suggested period. It stated that the cause of Ms King's current illness is an issue in the proceedings and the existence of prior medical conditions is relevant to that issue. It referred to statements made by Ms King in an affidavit filed in the proceeding to which I will return shortly. It also referred to numerous references to "physical disability" in the reply to its request for further and better particulars dated 29 November 2010. 9 In a letter to Ms King's solicitors dated 31 January 2011 API's solicitors offered an undertaking that the material described in the letter of 28 January 2011 would only be disclosed to "legal representatives and experts briefed in the matter". They noted that if the material was, indeed, irrelevant, then it would not be referred to in the experts' reports. The offer was rejected at the time and Ms Ryan, Ms King's solicitor who appeared for Ms King on the motion, maintained it was unacceptable. 10 In submissions Ms Ryan eschewed any reliance in the proceeding on a physical disability, claiming that the references to "physical disability" in her letter were taken from the terms of the Disability Discrimination Act 1992 (Cth), which, she submitted defined "physical disability" to include a psychiatric illness. She conceded that Ms King's credit "could" be an issue in the proceeding. She accepted that any reference to psychiatric symptoms in the context of a physical illness or examination was relevant but otherwise gave no ground. 11 Ms Ryan informed the Court that Ms King had been attending the medical practice for 14 years. Despite the terms of the letter of 20 January 2011 Ms Ryan submitted that production should be limited to a period commencing twelve months before Ms King commenced employment with API on 8 October 2008. 12 The relevant principles are well established. They were recently summarised by Hall J in GB (By His Tutor) FB v Western Sydney Area Health Service [2010] NSWSC 181 at [70] as follows: (1) The relevant test in terms of documents is whether they have "a sufficient apparent connection to justify their production or inspection": White & Tulloch v White [scil.] (1995) 127 FLR 105. (2) The test of adjectival relevance is satisfied if the material had apparent relevance and was established if the documents called for "could possibly throw light on the issues in the main case": Trade Practices Commissioner v Arnotts Ltd (1989) 21 FCR 306 per Beaumont J. 13 In Brand v Digi-Tech (Australia) Ltd & Ors [2001] NSWSC 425 at [36] Hunter J said: I think it is indisputable that, if the subpoenaed documents are by their description, arguably relevant or capable of providing a legitimate basis for cross-examination on credit matters, then an application to set aside a subpoena on the grounds of irrelevance of the documents to the proceedings is misconceived. 14 I accept that the references to "physical disability" in the letter from Ms King's solicitors of 29 November 2010 were intended to refer only to her psychiatric disability (although Ms Ryan's submission based on the terms of the Disability Discrimination Act seems to be misguided). Nevertheless, I am satisfied that the subpoenas have the necessary adjectival relevance. That is made clear from evidence contained in an affidavit Ms King has filed and served in the proceeding. The affidavit was affirmed on 1 November 2010: 397. Due to Mr Fallet's bullying of me, my physical and mental health deteriorated and I have been diagnosed as suffering from major depression. Since October 2009, I have suffered a number of symptoms related to depression, including insomnia, nightmares about Mr Fallet, loss of appetite, weight loss, nausea, headaches, severe tremor, uncontrollable crying, grinding and clenching of my teeth, back, shoulder and neck tension and spasms, and loss of interest in activities outside of work. I have also had suicidal thoughts on several occasions. 398. Prior to this situation, I have never experienced any similar work-related depressive or psychological injury. Although I have, in the past, suffered from depression, its cause was a personal relationship issue, and as at Christmas 2007, I had ceased taking anti-depressants as I was free of any depressive symptoms. 399. Prior to October 2009, my general physical and mental health was good. Everything in my life was going well. I was very happy with my job and my life outside of work. 15 I infer from the correspondence relied upon in the proceeding and I take from the submissions made by Ms Sutherland, who appeared for API, that API seeks to brief its medical experts with Ms King's full medical history. That is not unreasonable. Indeed, without it, their opinions might carry less weight. Ms King reports physical symptoms which may have a psychiatric or physical cause. The fact (as I was informed) that her own experts assign a psychiatric cause to physical symptoms does not mean that it is irrelevant to consider whether they have a physical origin. In addition, by her own assertion Ms King has made her pre-existing mental and physical health relevant (both to a fact in issue and to her credit). With the exception of the reference to the earlier bout of depression her statement is unlimited and unqualified. In those circumstances, and where no complaint is made that it would be oppressive or unduly onerous to compel production of the documents, I do not regard the scope of the subpoena as unreasonably wide. The fact that Ms King might find it intrusive, embarrassing or even distressing for others to have access to her confidential medical records is understandable but it is no reason to set aside the subpoenas. Loss of privacy is an unfortunate but necessary consequence of much litigation in order to ensure that there is a fair trial. Cf. The Food Improvers Pty Ltd & Anor v BGR Corporation Pty Ltd & Ors (No 2) (2006) 155 FCR 216 at [35]-[36]. As the Full Court of the South Australian Supreme Court observed in Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 at 56: Subpoenas not infrequently require production of confidential documents … The risk to the confidentiality of the documents must be tolerated in the interests of the administration of justice: Alliance Petroleum Australia NL v Australian Gas Light Co [(1982) 34 SASR 215] (at 239). 16 Nevertheless, I consider the undertaking API offered to be a reasonable one. With one qualification, I propose to refuse the orders sought but to limit the production of the documents to the legal representatives of the parties and the experts they retain until further order. I also grant Ms King first access. The qualification is that the items referred to in paragraph 1(d) of the schedule in each case should be limited in time to the period from 8 October 2008 to date. 17 So the orders I will make are as follows: (1) The schedule to each subpoena is to be amended so as to make it clear that the accounting records of fee cards which are required to be produced are those relating to consultations, examinations, treatments, or tests on and from 8 October 2008 to date. Otherwise, the notice of motion is dismissed. (2) Until further order, production of documents produced on subpoena to the following persons or entities, is restricted to the legal representatives of the parties and experts they retain for the purpose of the proceeding: (a) Dr Heba Mankarious; (b) Dr Jane Elizabeth Thompson; (c) Dr Martine Anne Walker; (d) the Mosman Practice. (3) The applicant is to have first access to the documents produced. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate: Dated: 15 February 2011