FEDERAL COURT OF AUSTRALIA Rooney v AGL Energy Limited [2019] FCA 2157 File number: VID 1024 of 2017 Judge: SNADEN J Date of judgment: 19 December 2019 Catchwords: PRACTICE AND PROCEDURE – subpoena – objection to inspection of documents produced – whether inspection would contravene s 588 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – objection dismissed Legislation: Fair Work Act 2009 (Cth) Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) Cases cited: Fletcher v Metropolitan Fire and Emergency Services Board [2012] FCA 1513 Victoria v Intralot Australia Pty Ltd [2015] VSCA 358 Date of hearing: 17 December 2019 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: Mr A F Solomon-Bridge Solicitor for the Applicant: Holding Redlich Counsel for the Respondent: Ms R Davern-Nelson Solicitor for the Respondent: Minter Ellison ORDERS VID 1024 of 2017 BETWEEN: HELEN MARREE ROONEY Applicant AND: AGL ENERGY LIMITED Respondent JUDGE: SNADEN J DATE OF ORDER: 19 DECEMBER 2019 THE COURT ORDERS THAT: 1. Mr Brennan's objection to the uplift and inspection of documents that he has produced under subpoena is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SNADEN J: 1 Before the court is an objection raised in the present matter by a non-party, Mr Andrew Brennan, to the inspection of documents that he has produced to the court in answer to a subpoena that was addressed to him and issued at the request of the respondent (hereafter, the "Subpoena"). 2 Mr Brennan's objection—the particulars of which are explored below—was contained within correspondence dated 22 October 2019 that he addressed to the court in answer to the Subpoena. At the request of the respondent, a registrar of the court referred the objection for determination by a judge. To that end, a hearing was scheduled for and conducted on Tuesday, 17 December 2019. Mr Brennan did not attend that hearing but indicated that he did not wish to elaborate upon his objection beyond what was said within his 22 October correspondence. After hearing from the parties, I dismissed Mr Brennan's objection and indicated that I would publish brief, written reasons for doing so. 3 Mr Brennan is a psychologist. The applicant, Ms Rooney, is one of his clients. He has sworn an affidavit that Ms Rooney intends to read at the trial of this matter, to which are annexed two expert reports that pertain to his treatment of the applicant; or, more specifically, to his assessment of her mental health (hereafter, the "Expert Reports"). That evidence is apparently intended to assist the applicant to establish the loss that she says that she has suffered in consequence of various statutory wrongs that, by this proceeding, she alleges that the respondent has visited upon her. 4 Amongst other things, the Subpoena required that Mr Brennan produce to the court: All records of whatever description (whether kept on or in any card, paper, folder, file or computer record system) relating to all medical conditions for which the Applicant (Helen Marree Rooney, DOB: 6 June 1970) has received treatment, that were: (a) relied upon; (b) used to form an opinion contained within; or (c) influenced, the content of the reports of Mr Brennan dated 28 January 2018 and 1 March 2018, including but not limited to: (i) patient or other clinical notes in relation to Ms Rooney; (ii) records of consultations with respect to Ms Rooney; (iii) details of any history, examination finding or opinion in relation to Ms Rooney; (iv) results or reports of any diagnostic investigation or referral in relation to Ms Rooney; (v) correspondence to or from any other person including any medical practitioner, allied health worker or legal representative in respect of Ms Rooney; (vi) notes of any conversation with any other person including any medical practitioner, allied health worker or legal representative in respect of Ms Rooney. 5 In satisfaction of that requirement, Mr Brennan has produced to the court two documents that are relevant for present purposes: the first is a letter of referral dated 24 July 2017 from the applicant's general practitioner, Dr Michael Hurn (the "Referral Letter"); the second is a bundle of clinical notes that he produced in respect of the applicant between 21 August 2017 and 28 January 2018 (the "Clinical Notes"). The Referral Letter contains some annexures, the particulars of which need not here be recited. 6 There is no contest that the Referral Letter and the Clinical Notes that Mr Brennan has produced (hereafter, the "Relevant Documents") are potentially relevant to the proceeding. Ordinarily, the interests of justice would require that the respondent—indeed, all parties—should have access to them. 7 Mr Brennan objects to their inspection on the grounds that it would contravene s 588 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the "WIRC Act"). That section relevantly provides that: A person must not use information obtained under or pursuant to this Act, the Accident Compensation Act 1985 or the Workers Compensation Act 1958 except as authorised by or in respect of a matter or for a purpose arising under this Act, the Accident Compensation Act 1985 or the Workers Compensation Act 1958. 8 Both parties resist Mr Brennan's objection. In short, Mr Brennan appears to contend that permitting the parties to uplift and inspect the Relevant Documents would license their use (or, more particularly, the use of the information that they contain) in contravention of s 588 of the WIRC Act. Two questions thus arise for the court's consideration: first, do the documents contain information that the parties stand to obtain under or pursuant to any of the statutory instruments to which the section refers; and, second, would inspection of those documents amount to (or otherwise lead to or license) their use in contravention of s 588 of the WIRC Act? Mr Brennan's objection apparently presupposes that both questions should be answered in the affirmative. 9 Insofar as concerns the second question, I accept (without deciding) that the uplift and inspection of the Relevant Documents by the parties might amount to their use. The parties each referred the court to the observations of North J in Fletcher v Metropolitan Fire and Emergency Services Board [2012] FCA 1513, in which his Honour found that the production of documents would not amount to their use within the contemplation of a predecessor of s 588 of the WIRC Act. Both urged me to adopt his Honour's reasoning. Respectfully, I would have no hesitation in doing so; but the issue in this case is not whether the production of documents by Mr Brennan amounts to their use—it is whether their uplift and inspection by the parties would. The documents have already been produced to the court. The objection with which I am presently confronted pertains to what might now happen to them: should the parties be able to uplift and inspect them, or should they be returned to Mr Brennan? That, I think, turns more upon whether the information that the parties hope to obtain will be obtained in circumstances that the section contemplates; not upon whether their uplift and inspection amounts to their "use". 10 The reference in the section to "information obtained" is, I think plainly, a reference to information that is obtained by the person to whom the prohibition might apply—that is, by the person that would otherwise seek to use it. It is not a reference to information that is created under or pursuant to the relevant enactments. A person who obtains information by means of a subpoena does so under or pursuant to an exercise of judicial power; not under or pursuant to the statutory regime to which s 588 of the WIRC Act refers. The use of information so obtained is not a matter upon which s 588 of the WIRC Act operates. 11 Even were it otherwise, I would not read s 588 as a constraint upon the court's power to compel the production of documents for use in proceedings. In Victoria v Intralot Australia Pty Ltd [2015] VSCA 358 (Beach and Kyrou JJA, Cavanough AJA), the Victorian Court of Appeal observed (at [55]) that: [I]f an Australian legislature desires to enact a secrecy provision which would impinge on court procedures for the obtaining (by parties or by the court itself) of relevant information or evidence — such as pleadings, particulars, discovery, inspection, subpoenas or the giving of written or oral testimony — then the legislature will generally need to refer expressly to courts in this regard. [fn: See Kalis v Kingborough Council [2014] TASFC 2, [17]–[34] and the many cases there cited, commencing (so far as Australian cases are concerned) with Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1, 6 (testimony by affidavit) and including Hilton v Wells (1985) 157 CLR 57, 87 (oral evidence); Potts v Dennis Jones & Co Ltd (1995) 58 FCR 61 (notice to produce and subpoenas); Transport Industries Insurance Co Ltd v Masel (Unreported, Supreme Court of Victoria, Byrne J, 28 June 1996) 17 (discovery and production for inspection). And see Re Lloyd's Ships (1986) 11 FCR 287, 292 (subpoenas); Abrook v Paterson (Unreported, Federal Court of Australia, O'Loughlin J, 24 August 1995) 6–8 (subpoenas); Christoforidis v Cygnet Bulk Carriers SA (2002) 122 FCR 1, 6–7 [12]–[18] (subpoenas); Renehan v Leeuwin Ocean Adventure Foundation Ltd [2005] NTSC 22, [6] (Mildren J) (subpoenas). 12 The applicant submitted that s 588 of the WIRC Act does not evince a sufficiently clear intention to impinge upon the orthodox processes of the court that regulate the exchange of relevant information or evidence. With respect, that submission must be accepted. Even if the reference in s 588 to "information obtained" should be construed as though it read "information created" (and even assuming that the uplift and inspection of the Relevant Documents amounts to their use), I would, in accepting that submission, remain of the view that Mr Brennan's present objection should fail. 13 Finally and in any event, it is not apparent how either of the Relevant Documents might be said to contain "…information obtained under or pursuant to…" any of the statutory regimes to which s 588 of the WIRC Act refers. In Mr Brennan's correspondence to the court of 22 October 2019, the Referral Letter and the Clinical Notes are said to relate "…to an approved workplace injury claim…" Assuming that to be so, it remains unclear how either falls within the contemplation of s 588 of the WIRC Act. Both appear, on their face, to relate to Mr Brennan's treatment of the applicant. It is not apparent that the information contained within them was obtained in a manner that s 588 of the WIRC Act contemplates. The onus of establishing as much rested with Mr Brennan and I am not persuaded that it has been met. 14 For those reasons, Mr Brennan's objection to the uplift and inspection of the Relevant Documents was dismissed. The parties indicated that they would discuss and prepare appropriate, consequential orders concerning the inspection of the Relevant Documents and the amendment of existing case-management orders for the preparation of expert evidence. Orders concerning those matters will be made in chambers with the parties' consent or, in the absence of agreement, following a further hearing. Presumably in light of s 570(1) of the Fair Work Act 2009 (Cth) (which applies generally to this proceeding), no application has been made for costs and no order will be made in that regard. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden. Associate: Dated: 19 December 2019