Supreme Court New South Wales Medium Neutral Citation: Styles v Clayton Utz [2011] NSWSC 1314 Hearing dates: 28 October 2011 Decision date: 28 October 2011 Before: Rothman J Decision: 1. Access to all documents in bundle s 8, including those separated in bundle s 2, be granted to the defendants; 2. Such access will be limited to senior counsel, junior counsel and one solicitor, Ms Anne Knight, and to the extent necessary, one doctor, nominated by the defendants through their counsel. 3. Costs will be costs in the cause. 4. The matter be referred to McCallum J. Catchwords: PROCEDURE - civil - an application for access to documents produced, which were separated by the Registry on the basis of objection to production and/or access by the defendant - restricted access granted Legislation Cited: Evidence Act 1995 Uniform Civil Procedure Rules 2005 Cases Cited: Cassanti v Pagalli [2006] NSWSC 160, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Category: Procedural and other rulings Parties: Bridgette Rebecca Styles (plaintiff) Joseph J Catanzariti trading as Clayton Uts (defendant) Representation: Self represented plaintiff K. Nomchong (for the defendant) Freehills (for the defendant) File Number(s): 2011/66430 Ex Tempore Judgment 1The matter before the Court is an application for access to documents produced, which were separated by the Registry on the basis of objection to production and/or access by the defendant. The documents are records of medical practitioners. 2Two bases for objection have been provided. The first is that, on its face, the subpoena does not seek to produce documents that are likely to have a probative value. The second is the provisions of section 126A and 126B of the Evidence Act 1995. I will deal with both of those issues together. 3The defendants, for their part, submit that given the substantive claim is for personal injury arising from sexual discrimination by an employer and breach of duty, on its face, a subpoena seeking medical records would likely produce documents that have, or would be likely to have, probative value. 4The defendants further submit that sections 126A and 126B of the Evidence Act do not apply to the production of and access to documents as distinct from applying to their admission into evidence. 5By operation of the Uniform Civil Procedure Rules 2005 (hereinafter, "UCPR") rule 1.9 and the definitions in schedule 11 of "privileged document" and "privileged information", objections that may be taken to the tendering of a document on the basis of confidentiality contained in sections 126A and 126B of the Evidence Act are objections that may be taken to production of the document. 6The stage with which the Court is now dealing is access. On one view of UCPR 1.9(3), when read together (as it must be) with the definitions of "privileged document" and "privileged information" (particularly paragraph (b) thereof) the evaluation required by section 126B(3) has no role in the operation of UCPR 1.9. However, UCPR 1.9 incorporates the overriding subjection of the prohibitions to the ability of the Court to declare information not to be privileged information. 7The appropriate course, in circumstances where documents have been produced and privilege claimed in relation to them, is to apply UCPR 1.9 to access in the same way as it applies to production: Cassanti v Pagalli [2006] NSWSC 160, per Barrett J at [18]. 8Further, the declaration that information not be privileged should ordinarily involve the same test as applied for its tender into evidence. In this case that approach should require the evaluation described in s 126B and that is the approach I will adopt. 9The Court is required to determine, due to the first objection of the plaintiff, whether the documents, as they are described, are likely to have a forensic purpose. It seems to me that medical records in the case of a claim for personal injury would be likely to have probative value and the subpoena to that extent passes the first test necessary to allow the subpoena to stand and to allow the defendants, who have issued the subpoenas, to have access. 10I turn then to the provisions of sections 126A and 126B of the Evidence Act as applied by rule 1.9 of the UCPR. The documents are a protected confidence within the terms of section 126A of the Evidence Act because they contain a communication with a treating medical practitioner and/or medical practitioner acting in a professional capacity for the defendant. 11The second aspect is whether the provisions of section 126B are mandatory. The provision utilises the term "must" and would therefore, be "mandatory," however, that is not always the case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [38]. [69] and [92] . In this case, its purported mandatory nature may be misleading, because the so-called mandatory nature of section 126B arises only after the Court considers the likely harm that might be caused to the protected confider and whether it outweighs the desirability of the evidence being given (or in this case, access granted). 12The factors that must be taken into account are those contained in s 126B(4), which I do not recite for the purposes of this judgment. Nevertheless, they deal, amongst other things, with the probative value of the evidence, its importance and the nature and gravity of the proceedings. I have, in order to deal with this application, looked at the documents in subpoena packet 2 (separated from Bundle S8), which are the documents to which objection has been taken. It seems to me that at least some of them may be probative of the harm which Ms Styles alleges in her claim, namely, they show an anxiety associated with what may be sexual discrimination and/or the conduct of the defendants. On the other hand, they may disclose an anxiety, condition or pre-occupation that pre-dates the alleged offending behaviour. 13As a consequence, those documents have a potentially significant probative value. Whether they are documents that assist the claim of the plaintiff in the proceedings or prejudice it, that does not make a difference to their probative value even though the plaintiff may have chosen not to use them. It is their probative value with which the Court is concerned. 14The second aspect is the harm that would, or might, be caused to the confider, including, in my view, the relationship of confidence, and the harm that would be done to the confider if the evidence is adduced, or in this case, if access be granted. "Harm", in that context, must mean something other than prejudice to the case of the confider. In my view, the probative value of the documents is generally not high, the exception being the document that may disclose a basis for prior injury, but the risk of harm is very low. As a consequence, the nature and extent of the harm does not outweigh the desirability of access to the documents being given. 15In weighing the matters contained in ss 126B(3)(a) and 126B(3)(b) of the Evidence Act and applying them by virtue of the provisions of the rule 1.9 of the UCPR, any potential harm to the protected confider can be overcome by confidentiality provisions or orders restricting access, which I will make. 16The Court therefore, makes the following orders: 1. Access to all documents in bundle s 8, including those separated in bundle s 2, be granted to the defendants; 2. Such access will be limited to senior counsel, junior counsel and one solicitor, Ms Anne Knight, and to the extent necessary, one doctor, nominated by the defendants through their counsel. 3. Costs will be costs in the cause. 4. The matter be referred to McCallum J. Orders may be entered forthwith. 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: 03 November 2011