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. Relevant principles – Legitimate Forensic Purpose 1. Rule 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) provides that the Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, provided that notice is given to the issuing party. 2. The principles are not complex. In Carroll v Attorney General (NSW) (1993) 70 A Crim R 162, Mahoney AP said (at 181-182): "... It is not open to a party, as on a "fishing expedition", to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding." 1. As stated by Beazley JA (as she then was) in Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 at [64]: "The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in R v Saleam [1999] NSWCCA 86 at [11], in the following terms: The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was". 1. In Fantakis v Local Court of New South Wales [2020] NSWSC 931, Hoeben CJ at CL stated the following in relation the requirements for establishing a legitimate forensic purpose at [35]: "It will therefore ordinarily be necessary for the subpoenaing party to identify the issue or issues in dispute at trial, what the subpoenaing party's case will be on that issue or those issues, how the subpoenaed documents will assist the subpoenaing party in his case and what are the grounds for believing that the documents will in fact assist." 1. In Mann v Commissioner of Police [2020] NSWSC 369, Adamson J at [25] said: "Once the ambit of a subpoena is put in issue, the issuing party is obliged to identify a legitimate forensic purpose for which the documents are sought. It is not sufficient that the documents falling within the ambit of the subpoena could, or might be, relevant, it must actually be 'on the cards'. Subpoenas are not to be used for the purposes of "fishing expeditions". And at [31]: "Further, the identification of "legitimate forensic purpose" is a matter which is peculiarly contextual. Thus it is not productive to seek to draw conclusions from the authorities beyond the statements of general principle expressed in cases such as Chidgey". And at [41]: "The test, which was authoritatively stated in Chidgey, was the test that her Honour applied. The test required an affirmative answer to the following two questions: first, has the party at whose request the subpoena was issued identified a legitimate forensic purpose for the documents; and, second, was it "on the cards" that the material would materially assist the accused? It was not sufficient that there was a reasonable chance that the material, if produced, would assist the defence case in some way: this was the test formulated by Adams J in Conolly which was expressly disapproved in Chidgey". 1. The parties agree these further statements of principle as set out in the defendant's written submissions are also apposite: "[7] Those relevant principles identify that a subpoena may not legitimately be used by a party to litigation to 'fish' (i.e. to find whether one has a case "at all" rather than to seek evidence in support of a case) nor as a substitute for discovery: see, Commissioner for Railways v Small (1938) 38 SR (NSW) 564, per Jordan CJ (at 574); see also, APPT v Cable and Wireless Optus [1999] NSWSC 454 (12 May 1999) (unreported) per Austin J. [8] In APPT (ibid), Austin J held (at [18]): …it is clear that subpoenas and notices to produce cannot be used to obtain material which is not relevant to the proceedings or used as a substitute for discovery… [9] Inspection ought not be required nor permitted (where objection to production is taken) unless and until the party who procured the issue of the subpoena identifies a legitimate forensic purpose for which production is required: NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139. [10] In Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498, Barr AJ, said at p 504: It is the duty of the Court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought and to refuse access unless such an identification is made. (footnotes omitted) [11] The party issuing the subpoena must be able to show that it is "on the cards" that the documents will bear on and have relevant to the issues in the case: Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667. [12] The relevance cannot be speculative: Travel Compensation Fund v Blair [2002] NSWSC 1128. [13] In NSW Commissioner of Police v Tuxford & Ors (ibid), Brownie AJA stated the following (in respect of speculative relevance): [26] One can readily visualise that some documents which might accurately be described as briefing papers relating to the investigation mentioned might throw some light on the issues raised by the pleadings, but the opponents need to go further. [27] In the language of Jordan CJ in Small (ibid) at 575, the opponents were not entitled to procure the issue of the subpoena for the purpose of fishing, that is, endeavouring not to obtain evidence to support their case, but to discover whether they has a case at all, or to discover the nature of the case of the defendant. In the language of Lord Wilberforce in Air Canada (ibid) at 439 there must be something beyond speculation, some common ground for belief that takes the case beyond a mere fishing expedition. [28] Counsel for the opponents said, at different points, that his clients believed or that they suspected that the mass of documents called for by the subpoena, considered as a whole, would show that the senior officers mentioned had no basis, or no proper basis for acting as they did, so that the detention of the opponents amounted to a false imprisonment. However the matter was taken no further. There was nothing in the pleadings or in the evidence that supports the mere statement from the bar table of a belief or suspicion held. Further, nothing was said, concerning the documents called for in paragraph 1. Practically speaking, the opponents left it to us to work out for ourselves what the documents called for might show. In my respectful view, the proposition has only to be stated in full to be seen to be unacceptable." [14] In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, Bell P held (at [71] – [72]): "[71] The converse of this, namely the absence of any apparent relevance (in the broad sense of that term) of the documents sought to be subpoenaed to the issues in the case, may warrant a conclusion of a lack of legitimate forensic purpose and be a sufficient ground to set aside a subpoena or a part of a subpoena: see Portal Software at [22]. That is because, if the documents subpoenaed do not meet the relatively low threshold of apparent relevance, it may readily be inferred that the documents are being sought for some purpose foreign to the litigation. That may not have been the issuing party's motivation, but the lack of apparent relevance test is a convenient means of delimiting that which is legitimate. [72] In civil as opposed to criminal proceedings, in most cases, the issues will in the first instance have been identified and defined by the pleadings and particulars. The issues are frequently further refined by amendments to the pleadings and upon the service of witness statements and affidavits. This is a key difference between civil and criminal proceedings and, to the extent a different test or approach is taken in criminal proceedings, it may be explained by the absence of pleadings and the very different procedural context in which criminal proceedings take place. As explained below, the procedural landscape in relation to criminal proceedings has also changed significantly over recent decades." Plaintiff's submissions and the asserted legitimate forensic purpose 1. Ms Hillier submitted that the documents sought arose from an entitlement to test whether or not: 1. Dr Harrison was in fact, at the time of Ms Polsen's surgery (22 July 2013) actually "performing a wide range of bariatric procedures as well as revision surgery"; and 2. Dr Harrison made claims on Medicare regarding the plaintiff. 1. Ms Hillier submitted that these "issues" arose from what Dr Harrison asserted in his written statement at pars 5, 8 and 29: "[5] I am the principal of the largest non-metropolitan bariatric practice in Australia. The bariatric practice has evolved since commencing in 2003 and is an accredited unit with the Cancer Institute of NSW to perform resection of major upper GI malignancy. This involves a wide range of primary bariatric procedures as well as revisional operations in and around the lower oesophagus, hiatus and proximal stomach. … [8] My bariatric practice involves a two-year programme of consultations with my multidisciplinary team to support patients on their weight loss journey. The cost of the two-year programme is included in the quote given to prospective patients, meaning that they pay no additional out of pocket expenses for this period. This program means that there is no financial barrier to patients returning for follow up care after surgery. … [29] I explained what our program involves with words to the following effect – We start with pre-operative education to help you prepare for surgery and understand what to expect once you have had the procedure. After the surgery, we offer a two year program where my team and I will look after you with no out of pocket expenses. If you have a health fund then you will have no gaps. If you have no health fund, we will bulk bill you. And if you have a complication, our team will look after you if you land in hospital either at Calvary or at the Base. Routine follow up after surgery involves the team seeing you in hospital after the surgery. After discharge, we are available on the phone as needed and you will have your first post-operative appointed at one month. You will be seen on a three monthly basis for the first year and then six monthly in the second year. You will have regular blood tests to monitor you over this period. We can see you annually or as required thereafter. After the two years we encourage you to stay involved with the practice and to contact the team if there are any problems." 1. Ms Hillier submitted that this means that the question of the truth or otherwise of these assertions, is "on the cards" at the trial. Defendant's submissions 1. Mr Hutchings submitted that the approach of the plaintiff is entirely misconceived. It is evident par 5 is an introductory paragraph that sets out the nature and extent of the growth of the practice since 2003. There is nothing at all that confines itself to what Dr Harrison personally was doing in July 2013. 2. The second aspect, that Ms Hillier argued arises from par 8 of Dr Harrison's statement, is also misconceived. Dr Harrison did not say he made no claims on Medicare, he simply outlined the approach in respect of the normal course for patients in the first two years of their treatment. 3. In respect of par 29 of the statement, Dr Harrison stated that Medicare bills will arise in the context of being bulk billed. Again, there is no assertion that Medicare will not be charged; quite the opposite. 4. There is quite an obvious lack of apparent relevance, even applying a low bar for relevance. Decision 1. The subpoena is misconceived. It appears to arise from a mistaken interpretation of background matters referred to in the statement of Dr Harrison. 2. Even if the documents sought were confined to production of records only in relation to the plaintiff, it still is not directed to any issue for consideration or determination in the proceedings. 3. The case made by the plaintiff is that Dr Harrison failed to competently perform gastric sleeve surgery in July 2013 and failed to adequately treat her post operative complications in a timely manner. 4. What surgeries he performed on others between July 2012 and 2014 is not an issue for determination in this trial, nor is whether Medicare made payments in respect of such surgery. 5. There is no legitimate forensic purpose articulated. There is no apparent relevance to the documents sought. Costs 1. Costs follow the event. The plaintiff pressed for par 1 of the subpoena to be answered. The arguments stated for that position failed. The plaintiff is to pay the defendant's costs of the motion. Orders 1. I make the following orders: 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2021