Polsen v Harrison (No 6) [2021] NSWSC 1050

Supreme Court New South Wales

Medium Neutral Citation: Polsen v Harrison (No 6) [2021] NSWSC 1050 Hearing dates: 20 August 2021 Date of orders: 23 August 2021 Decision date: 23 August 2021 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The subpoena to produce filed on 3 February 2021 directed to Services Australia is set aside. (2) The plaintiff is to pay the defendant's costs of the Notice of Motion filed on 4 May 2021. Catchwords: PRACTICE AND PROCEDURE – subpoenas – application to set aside subpoena – no legitimate forensic purpose – application granted Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 Carroll v Attorney General (NSW) (1993) 70 A Crim R 162 Fantakis v Local Court of New South Wales [2020] NSWSC 931 Mann v Commissioner of Police (NSW) [2020] NSWSC 369 Category: Procedural rulings Parties: Katrina Marie Polsen (Plaintiff) Dr Harrison (Defendant) Representation: Counsel: JA Hillier (Plaintiff) M Hutchings (Defendant)

Solicitors: Commins Hendriks (Plaintiff) HWL Ebsworth (Defendant) File Number(s): 2016/204451 Publication restriction: Nil

Judgment 1. The plaintiff, Ms Katrina Polsen, by Further Amended Statement of Claim filed on 18 December 2020, brings proceedings against the defendant, Dr Richard Harrison, alleging negligence and breach of contract in respect of a surgical procedure conducted on 22 July 2013 (a gastric sleeve gastrectomy), and the care afforded to the plaintiff post-operatively. 2. On 3 February 2021, the plaintiff directed a subpoena to produce to "Services Australia" seeking: "A copy of all records of claims made with Medicare Australia by Dr Richard Ian Harrison... from 1 July 2012 to 1 July 2014" 1. The same subpoena required identical production in respect of Dr Nicholas Williams in par 2 of the subpoena but this is no longer pressed by the plaintiff. 2. The defendant, by Notice of Motion filed on 4 May 2021, seeks an order setting aside the subpoena on the basis that it lacks a legitimate forensic purpose and that the documents sought have no relevance to the issues in the proceedings. 3. The plaintiff asserts that the documents sought would shed light on the veracity or otherwise of assertions made in pars 5 and 8 of his evidentiary statement dated 20 November 2020. 4. For the reasons that follow, I order that the subpoena be set aside with costs.