Worthington v Ibrahim [1999] NSWSC 868

New South Wales Supreme Court CITATION : Worthington v Ibrahim [1999] NSWSC 868 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 21177 of 1996 HEARING DATE(S) : 23/08/99 JUDGMENT DATE : 30 August 1999

Robert John Worthington (plaintiff) Nabeel Ibrahim (1st defendant) PARTIES : Herglen Pty Ltd t/a Hunters Hill Private Hospital (2nd defendant) Western Area Health Service t/a Auburn District Hospital (3rd defendant) Peter William Flynn (4th defendant) JUDGMENT OF : Hidden J at 1

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 21177 of 1996 LOWER COURT JUDICIAL OFFICER : Master Malpass

J Renwick (plaintiff) COUNSEL : I Butcher (1st defendant) S Rushton (Health Care Complaints Commission) SOLICITORS : Hartman & Associates (plaintiff) Ebsworth & Ebsworth (1st defendant) CATCHWORDS : Subpoena to produce - whether access should be granted - apparent relevance - considerations of privacy, public policy ACTS CITED : Health Care Complaints Act, 1993 Evidence Act, 1995 Lakatoi Universal Pty Ltd v Walker (Rolfe J, unreported, 6 November 1998) CASES CITED : National Employers' Mutual General v Waind and Hill [1978] 1 NSWLR 372 Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 DECISION : Appeal allowed

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J No: 21177 of 1996 Robert John Worthington v Nabeel Ibrahim & Ors

Monday, 30 August 1999 Reasons for judgment

1 HIS HONOUR : The plaintiff, Robert John Worthington, has brought proceedings in this Court against two doctors and two hospitals seeking damages for negligence. The claim against the first defendant, Dr Nabeel Ibrahim, relates to surgery he performed upon the plaintiff for an hiatus hernia which resulted in the perforation of the plaintiff's oesophagus. The plaintiff issued a subpoena directed to the Heath Care Complaints Commission to produce various documents, including documents relating to any complaint (other than that relating to the plaintiff himself) received by the Commission alleging negligence on Dr Ibrahim's part during operative procedures. 2 In response to the subpoena, the Commission produced a volume of material and did not claim public interest immunity in respect of any of it. However, objection was taken to the parties being given access to two of the files. Registrar Irwin declined to grant access to those files and his decision was affirmed upon review by Master Malpass. The plaintiff has appealed against the Master's decision. Access is not now pressed in respect of one of the files. Accordingly, the appeal relates only to the remaining file, which answers the description of a complaint of negligence on the part of Dr Ibrahim during operative procedures. 3 Master Malpass did not inspect the file. He was informed that the complaint arose from operative treatment for a hernia, but by a procedure different from that performed upon the plaintiff. It was argued for the plaintiff that he was entitled to access to it in an effort to "build up an evidentiary mosaic", the expression used by Rolfe J in Lakatoi Universal Pty Ltd v Walker (Rolfe J, unreported, 6 November 1998). In particular, it was asserted that the file might assist in cross-examination, lead to further inquiry and, possibly, to amendment of the pleadings. Master Malpass was unpersuaded by this argument, saying that he was not satisfied that the file had "apparent relevance" to the proceedings: National Employers' Mutual General v Waind and Hill [1978] 1 NSWLR 372, per Moffitt P at 385. 4 That was sufficient to dispose of the matter, but the Master found further support for his decision in other considerations. He referred to the complainant's interest in privacy, given the personal nature of the information necessarily contained in the file. He referred also to the fact that the Commission is a public body having statutory responsibilities, and the Act which governs it contains the usual provision prohibiting disclosure of information obtained by it except in certain circumstances: s37 of the Health Care Complaints Act , 1993. (Under that section disclosure may be made with "lawful excuse" which, of course, includes production of records in answer to a subpoena.) 5 With respect, it appears to me that the Master has measured apparent relevance by too narrow a test. True it is the file does not relate to the surgery performed upon the plaintiff. However, it could lead to further inquiry and, possibly, provide material admissible as tendency evidence under s97 of the Evidence Act , 1995. Equally, it might be a source of material for use in cross-examination. To adopt the words of Waddell J in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, "…it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case." 6 For more abundant caution, I have inspected the file and I should say that the Master's description of the medical condition of the complainant is not entirely accurate. That said, my inspection has done nothing to change my view. 7 I am conscious of the sensitivity of a file of this kind and the need to have regard to the interests of the complainant: cf Waind and Hill at 383. In accordance with common practice, the complainant's name and address have been obliterated from the file prior to production to the Court. The file discloses a source through whom the complainant might be contacted, but that contact would be possible only if he or she were willing to communicate with the plaintiff's legal advisers. In the circumstances, it appears to me that the privacy of that person is adequately protected. 8 Before me counsel for the Commission, whose submissions were adopted by counsel for Dr Ibrahim, argued that access should be refused as a matter of public policy. In addition to s37 of the Health Care Complaints Act , he referred to the beneficial objects of the Act set out in s3, which include facilitation of "the maintenance of standards of health services in New South Wales". He argued that the risk of disclosure of the Commission's records in the course of litigation might inhibit citizens from making complaints and might affect the candour with which doctors responded to them. This really is a claim for public interest immunity, which should have been made prior to or at the time of production and have been supported by evidence. In any event, the privacy of complainants would normally be protected by the obliteration of their names and any other information which might tend to identify them. Equally, given the disciplinary powers conferred by the Act, it is not apparent to me how the candour of a doctor's response to a complaint might be affected by the risk of its being used in litigation. 9 Accordingly, I am satisfied that Master Malpass fell into error in his approach to the matter, both as to the apparent relevance of the material and as to the other considerations which were raised. I am unpersuaded by an argument before me that the plaintiff's interest in the matter would be met by discovery and interrogatories. The appeal should be allowed and the parties should have access to the relevant file (94/1279). Before formally granting access, I shall hear counsel as to whether any further material should be edited from it and as to conditions, if any, upon which access should be permitted. I shall hear the parties on costs. **********