New South Wales Supreme Court CITATION : WORTHINGTON v IBRAHIM & ORS [1999] NSWSC 470 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 21177/1996 HEARING DATE(S) : 19 May 1999 JUDGMENT DATE : 21 May 1999 ROBERT JOHN WORTHINGTON PARTIES : v NABEEL IBRAHIM & ORS JUDGMENT OF : Master Malpass LOWER COURT JURISDICTION : Supreme Court Registrar LOWER COURT FILE NUMBER(S) : 21177/1996 LOWER COURT JUDICIAL OFFICER : Registrar Irwin PLAINTIFF: D K JORDAN COUNSEL : FIRST & FOURTH DEFENDANTS: N/A HEALTH CARE COMPLAINTS COMMISSION: MR S J RUSHTON PLAINTIFF: HARTMANN & ASSOCIATES SOLICITORS : FIRST & FOURTH DEFENDANTS: EBSWORTH & EBSWORTH HEALTH CARE COMPLAINTS COMMISSION: MR K VASAN CATCHWORDS : Subpoena duces tecum; leave to inspect complaint files produced by Health Care Complaints Commission; discretionary considerations. ACTS CITED : Health Care Complaints Act 1993 s 3, s 15, Part 2, s 37, s 37 (a) to (d), s 75, s 80. CASES CITED : National Employers Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372. Lakatoi Universal Pty Limited & Ors. v Walker & Ors. (1998) NSWSC 470. DECISION : SEE PARAGRAPHS 24-26 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS FRIDAY 21 MAY 1999 21177/1996 ROBERT JOHN WORTHINGTON v NABEEL IBRAHIM & ORS JUDGMENT 1 These are professional negligence proceedings. The first and fourth defendants are legally qualified medical practitioners. The second defendant carried on the business of a private hospital at Hunters Hill. The third defendant carried on the business of a public hospital under the name of Auburn District Hospital 2 The plaintiff brings a claim for damages arising out of personal injury. The Statement of Claim pleads a number of counts. For present purposes, it suffices to mention that inter alia the plaintiff was provided with medical services. These services involved pre-operative and post surgical treatment as well as surgical treatment itself. The surgical treatment involved a procedure carried out by the first defendant at the second defendant's hospital for the repair of a hiatus hernia. 3 The plaintiff has served a Subpoena for Production of Documents on the Health Care Complaints Commission (the Commission). The Commission has produced documentation in response to that subpoena. For present purposes it suffices to say that this documentation comprises inter alia two files (numbered respectively 9300614 and 9402179). On 22 March 1999, the plaintiff filed a Notice of Motion. It sought an order that the plaintiff be given access to the material produced in response to the subpoena. The application was opposed by both the Commission and the first defendant. 4 The dispute came before Registrar Irwin on 29 March 1999. The decision of the Registrar was given on that day. In effect, the Registrar refused the application for access and proceeded to set aside part of the subpoena. 5 On 19 April 1999, the plaintiff filed a further Notice of Motion. It sought a review of the decision of the Registrar. The review was undertaken on 19 May 1999. 6 The plaintiff seeks relief pursuant to Part 37 rule 10 of the Supreme Court Rules. The rule is in the following terms:- " A party may not, except with the leave of the Court, search for or inspect any document or thing produced, except by him, in compliance with the requirements of a subpoena, and not admitted into evidence." 7 When documents are produced in response to a subpoena they become subject to the control of the Court ( National Employers Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372 at 382-383). The Court has a discretionary power to grant leave to inspect the documents. The discretion is exercised having regard to the relevant circumstances of the particular case before the Court and so that justice is best served between the parties. The applicant bears the onus of satisfying the Court of an entitlement to leave. 8 The Court has not had the advantage of inspecting the two files. Counsel for the Commission has provided it with information concerning the contents thereof. I shall refer to some of the information that has been provided. 9 Each of the two files relates to a complaint made to the Commission against the first defendant under the provisions of the Health Care Complaints Act 1993 (the Act). They are separate complaints made by different parties. Neither of the complainants is a party to these proceedings. One complaint related to a matter concerning a hiatus hernia. The matter is not the same as the operative procedure performed in this case. The other file relates to a matter of an alleged failure to furnish a report. Both complaints were resolved without any action being taken. 10 The Commission is constituted by the Act (s 75) and has the functions expressed in s 80 (these include such other functions as are conferred or imposed on it by the Act). 11 I now turn to what has been said on behalf of the plaintiff in support of the application. There has been reference to what was said by Rolfe J in Lakatoi Universal Pty Limited & Ors. v Walker & Ors. (1998) NSWSC 470. In that case, the observation was made that in determining the question of relevance the Court must bear in mind that the parties are entitled to build up an evidentiary mosaic. The further observation was made that one must have regard to the desirability of as full a cross-examination as possible, assisted by the availability of documents which will aid that. 12 The plaintiff is unable to identify how the information contained in the documentation may assist in the building up of the "evidentiary mosaic". In asserting apparent relevance, the argument is put that it may assist in cross-examination, it may lead to further inquiry and may also lead to an amendment of the pleadings. 13 The Commission sees the present dispute as involving an important matter of principle. Its opposition has been supported by the first defendant (who inter alia adopts the submissions made by the Commission). The commission takes the view that it has been required to make available for inspection records which are of a private nature and concern persons who are not a party to the proceedings. In support of its stance, the Commission has referred to various provisions of the Act. 14 I shall refer to some of these provisions. There are the objects of the Act (which are set forth in s 3). There is s 15, (which makes provision for the supply of information requested by a registration authority). There is Part 2 of the Act, (which deals with complaints). There is s 37, (which makes it an offence where there has been improper disclosure of information). This provision relates to information obtained in exercising a function under Division 5 (which deals with investigation of complaints) and applies in cases where the disclosure is not made in accordance with any of (a) to (d) thereof. 15 I should add that on behalf of the plaintiff it is said that it would be acceptable if the names and addresses of the complainants have been deleted from the material made available for inspection. 16 I am not satisfied that either file has apparent relevance to the present proceedings. I am not presently satisfied that any of this material could assist in cross-examination or lead to further inquiry or lead to an amendment of the plaintiff's pleadings. 17 The material forms part of the records of the Commission. It is information which has been obtained in exercising a function under Division 5. It relates to private matters which concern persons who are not a party to these proceedings. If the names of the complainants are not required, it would seem that the Court can put aside any consideration that they may be potential witnesses in the proceedings. 18 The authorities support the view that in considering an application for leave to inspect documents produced in response to a subpoena the Court should bear in mind whether or not the inspection can add to the relevant evidence in the case. The test is whether the documentation contains information of apparent relevance to the issues. If that be the position, the Court may be assisted in resolving those issues (see Waind 382-385). 19 This may not be the only relevant consideration. There may be others such as where the documents contain private matter and are produced by a public authority. The position of the non-party may need to be taken into account (see Waind 383-386). 20 For the reasons already expressed, I am not satisfied that there would be utility in granting leave. Whilst this finding of itself would be sufficient to defeat the present application, I should turn also to other relevant considerations. Non-parties are affected. The information is of a personal nature (it is related to medical treatment had by each claimant). Their respective attitude to inspection is not known to the Court. Presumably, consent has not been sought from either of them. The Legislation recognises the importance of the matter of their consent (disclosure of the information without it may in the appropriate case constitute an offence). In these circumstances, it is relevant to have regard to the possibility that each or either of them may want the information or part of it to remain private. The Commission objects to inspection. It is a public body charged with the performance of statutory functions. There is legislative indication that the information should not be disclosed except in accordance with any of (a) to (d) of s 37. In my view, these other considerations reinforce the view that leave should not be granted. 21 In the circumstances of this case, I am not satisfied that the plaintiff has demonstrated an entitlement to leave to inspect the documents. 22 It can be said that the Registrar did to some extent misconceive the nature of the application before him. He was in error in setting aside part of the subpoena. The documents had been produced and he was in substance dealing with an application to inspect those documents. However, the rationale behind his decision appears to have been a failure on the part of the plaintiff to satisfy the Court that he should be allowed to inspect the documents. 23 The Court records should be corrected by disturbing the decision to set aside paragraphs 2 and 3 of the schedule contained in the subpoena. The substance of the decision which is in effect a refusal to grant leave to inspect the documents should be confirmed. 24 The order made by the Registrar is set aside. The application for leave to inspect the produced documents is refused. 25 The Registrar made no order as to costs of the application before him. The parties do not seek to disturb that position as to costs. However, there is dispute as to the costs of the review. 26 Whilst there was some misdirection on the part of the Registrar, at the outset it was common ground that it was erroneous to set aside part of the subpoena and the case then argued on the review concerned an application for leave to inspect the documents. The plaintiff has been unsuccessful on that question. In the circumstances of this case I am not satisfied that the costs order should be other than that which follows the event. The plaintiff is to pay the costs of the Notice of Motion filed on 19 April 1999. ********** Last Modified: 05/21/1999 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. 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