HEALTH SERVICES FOR MEN PTY LTD & ORS v D'SOUZA & ORS [2000] NSWCA 56

Reported Decision : [2000] 48 NSWLR 448

New South Wales Court of Appeal

CITATION : HEALTH SERVICES FOR MEN PTY LTD & ORS v D'SOUZA & ORS [2000] NSWCA 56 FILE NUMBER(S) : CA 40932/99 HEARING DATE(S) : 18 February 2000 JUDGMENT DATE : 22 March 2000

PARTIES : Health Services for Men Pty Limited - Appellant Oscar D'Souza, Paul Condoleon, Mirwais Wadan - Respondents JUDGMENT OF : Mason P at 1; Priestley JA at 11; Sheller JA at 12

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT 3563/99 FILE NUMBER(S) : LOWER COURT Bryson J JUDICIAL OFFICER :

M L Einfeld QC/JW Stevenson - Appellant COUNSEL : M Cashion SC/T M Thawley - Respsondents

SOLICITORS : Turtons Lawyers - Appellant D G F Morgan & Associates - Respondents CATCHWORDS : INTELLECTUAL PROPERTY - Property in medical records as between doctors and owners of medical clinics - Intention of parties - CONTRACTS - Relationship between doctors and owners of medical clinics - Property in medical records - EQUITY - Equitable remedies - Grant of injunction - Considerations upon which court exercises discretion - ND Medical Practice Act 1992 LEGISLATION CITED : Ambulance Services Act 1990 Poisons and Therapeeutic Goods Act 1966 Suitors Fund Act 1951 Breen v Williams (1996) 186 CLR 71 Hunter v Mann [1974] 1 QB 767 Ormonoid Roofing and Asphalts Ltd v Bitumenoids Ltd (1930) 31 SR (NSW) 347 CASES CITED: Schindler Lifts Australia Pty LTd v Debelak (1989) 89 ALR 275 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561 DECISION : 1. Appeal allowed; 2. Set aside the declaration, directions and orders made by Bryson J on 30 November 1999; 3. In lieu thereof; (a) Declare that the plaintiffs are entitled to retain as against the defendants the documents identified in the patient files as; (i) examination sheets; (ii) implied consent forms; (iii) pathology reports; (iv) the manilla folders; (v) the documents entitled "must be completed by the patient; (vi) the slips recording the patient name, patient address, date of attendance and/material supplied (the day sheets); (b) Order that the defendants within 7 days of this order deliver up to the plaintiffs any of the documents described in (a) retained by them or any of them and taken from the appellants' premises or possession; (c) The defendants to pay the plaintiffs' costs of the proceedings before Bryson J; 4. The appellants have liberty to apply to the Equity Division for any further relief in the proceedings; 5. The respondents to pay the appellants' costs of this appeal but to have a certificate under the Suitors Fund Act 1951 if so entitled.