Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Melhem v Commissioner of Police, NSW Police Force [2016] NSWCATAD 279 Hearing dates: 8 November 2016 Date of orders: 28 November 2016 Decision date: 28 November 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: 1. The application to set aside the summons addressed to Dr Milch is dismissed. 2. The application to set aside the summons addressed to MDA National Insurance Pty Ltd is dismissed. 3. The application to set aside the summons addressed to Employers Mutual NSW Limited is dismissed. Catchwords: SUMMONS – objection to summons addressed to medical practitioner, professional indemnity insurer and workers compensation insurer – relevance – oppression – privacy – effect of disclosure on person's mental health - professional confidential relationship privilege – effect of offence provision under Family Law Act Legislation Cited: Evidence Act 1995 (NSW), s 126A, 126B, 131A Civil and Administrative Tribunal Act 2013 (NSW) s 38(2) Family Law Act 1975 (Cth), s 121 Civil and Administrative Tribunal Act 2013 (NSW), s 38(2), s 67, s 73 Evidence Act 1995 (NSW), Pt 3.10, Div 1A, ss 126A, 126B and 131A Family Law Act 1975 (Cth) s 121 Cases Cited: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 Becwell Legal Service Pty Ltd v McMaster [2011] FCA 1501 Casley-Smith v District Council of Stirling (1989) 51 SASR 447 Commissioner for Railway v Small (1938) SR (NSW) 564, 574-575 Hinchcliffe v Commissioner of Police of the Australia Federal Police [2001] FCA 1747 National Employers' Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372 Plate Glass Holdings Pty Ltd v Fraser Gordon Investments Pty Ltd [2012] FCA 1487 Portal Software International Ltd v Bodsworth [2005] NSWSC 1115 Re Edelsten; Ex part Donnelly (1988) 18 FCR 434 Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710 Category: Procedural and other rulings Parties: Evan Melhem (Applicant) Commissioner of Police, NSW Police Force (Respondent) Summons respondents Dr A Milch MDA National Insurance Pty Limited Employers Mutual NSW Limited Representation: Solicitors: P Melhem (agent for Applicant) Bartier Perry (Respondent) TressCox (MDA National and Dr Milch) C Sibbald (Employers Mutual NSW Ltd) File Number(s): 1610362 Publication restriction: Nil REASONS FOR DECISION Overview 1. The Commissioner of Police has placed a condition on Evan Melhem's firearms licence. The condition relates to his brother, Rousell Melham (also known as Russell Melham). It prevents Evan from possessing or storing firearms at his residence or any residence that is also occupied or may be accessed by his brother. The reason the Commissioner gave for imposing the condition was that: I have reviewed your brother's police records which reveal your brother has a mental health condition and a history of violent behaviour and has been charged with serious offences involving violence and intimidation. 1. The serious offence with which Russell Melham was charged on 4 April 2014 was "aggravated break and enter and commit serious indictable offence". The charges related to an alleged incident involving his ex-wife, Lorma Gutierrez, and their two children. Evan Melham says that following a 13 day hearing, a jury found Russell not guilty of this offence. 2. The Commissioner of Police concluded that despite the fact that Evan Melham had held a firearms licence for six years with no criminal convictions, the possibility that Russell may use violence against Evan to access firearms could not be ignored. 3. Evan Melhem does not accept that there is a risk that his brother would attempt to access his firearms. He has applied to the Tribunal for a review of the decision to impose the condition. 4. Evan Melhem has issued three summonses to obtain information to support his case. Those summonses were issued to Dr Milch (a single expert witness appointed by an Independent Children's Lawyer in Family Law proceedings involving Russell Melham), MDA National Insurance Pty Ltd (Dr Milch's professional indemnity insurer) and Employers Mutual NSW Limited (Russell Melham's workers compensation insurer). Those entities and the Commissioner of Police have applied to have each of the summonses set aside. 5. I have concluded that there is no basis on which the summonses should be set aside. 6. On 30 August 2016 the NSW Police issued a summons to Dr Cook, Russell's treating psychiatrist and Hornsby Hospital. Each party has been given photocopy access to those documents. I have noted the undertaking by the solicitor for NSW Police, Mr Mattson, that none of the information will be provided to Detective Little, a police officer who has had some involvement with Russell Melhem. Summons to Dr Milch Wording of the summons 1. The Tribunal issued a summons at the request of Evan Melhem, to Dr Antony Milch for the following documents or things: (i) All records of conversation, business records, reports, file notes, emails, faxes, dates and times of phone records/calls, electronic communication including Skype and/or any apple application and/or any Google application and/or any Microsoft application between NSW Police, Renee Hudson, Diana Perla, Richard Schonell, Eva Karagiannis, Lorma Gutierrez, Dr Vincent Ip, MDA National, Avant Mutual, Rousell Melhem and any other person with Doctor Anthony Milch and/or employees of Family in Mind and/or any representative of Dr Anthony Milch and/or representative of Family in Mind regarding Rousell Antanios Melhem (Russell Melhem) and Lorma Guiterrez. (ii) All payments and promises of financial benefits made to Dr Anthony Milch, from Rebecca Anne Little, Renée Hudson, Diana Perla, Eva Karagiannis, Lorma Gutierrez, Employers Mutual or their agents in regard to Rousell Antanios Melhem (Russell Melhem). Background 1. Dr Milch was appointed as a single expert witness by an Independent Children's Lawyer, Eva Karagiannis. He provided a report relating to a parenting dispute between Russell Melhem and his ex-partner Lorma Gutierrez. The hearing took place in the Family Court on 19 November 2015. Evan Melham believes that the main reason for the imposition of the condition is opinions about Russell Melham conveyed by Dr Milch to Detective Little. Reasons for issuing summons 1. In summary, the reasons Evan Melhem gave for requesting that a summons be issued to Dr Milch were that: 1. Dr Milch told various people, including Detective Little, that Russell Melhem was 'dangerous'; 2. Dr Milch lacks credibility because: 1. Dr Milch's 'diagnosis' of Russell Melhem was contradictory and contained deliberate errors; 2. Dr Milch "worked with" the Independent Children's Lawyer, Eva Karagiannis, to make inconsistent statements in the Family Court on 19 November 2015; 3. Dr Milch went on to make more inconsistent statements to Dr Cook, Russell's treating psychiatrist, in an attempt to have Russell scheduled under the Mental Health Act 2007 (NSW) at Hornsby Hospital; 4. two other psychiatrists, Dr Ip and Dr Gregory, do not accept Dr Milch's 'diagnosis'; and 5. Dr Milch "went on to fabricate more lies to his insurer MDA National, regarding the conduct of Dr Cook and the allegation that Russell was 'dangerous'. 1. Evan Melham says that the transcripts from the Family Court hearing disclose inconsistencies with Dr Milch's earlier reports to the Family Court. He also says that the transcript contradicts Dr Milch's later communications with NSW Police and Hornsby Hospital. Objections 1. A summons may be set aside for various reasons which sometimes overlap. Broadly, they fall into the categories of abuse of process, oppression of the addressee, insufficient particularisation, lack of apparent relevance and using a summons as a fishing expedition. If a document is privileged from production or it will constitute an offence to produce the document, those matters will also be relevant when deciding whether to set aside a summons. 2. The document or thing does not have to be admissible in evidence before it can be obtained under summons: National Employers' Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372. 3. Dr Milch objected to the summonses addressed to him being issued on four grounds I will refer to these grounds as restriction on publication of Family Court proceedings, professional confidential relationship privilege, oppression and relevance. The Commissioner of Police objected on the grounds of relevance, oppression and using the summons as a fishing expedition. I will consider first whether it would be an offence under the Family Law Act 1975 (Cth) to produce the documents and second, whether there is any privilege from production. Next I will consider apparent relevance and oppression. Restriction on publication of Family Court proceedings 1. Production of the following three categories of documents was said to be an offence under s 121(1) of the Family Law Act: 1. correspondence between Independent Children's Lawyer and Dr Milch in 2015 and 2016; 2. Dr Milch's reports for the Family Court dated 8 September 2015 and 6 November 2015; and 3. Dr Milch's handwritten interview notes in 2015. 1. In summary, under s 121(1) of the Family Law Act 1975, it is an offence to publish, broadcast or disseminate to the public, or a section of the public "any account of any proceedings" under the Family Law Act that identifies a party, a witness or a person who is in any way concerned in the matter. The provision, in full, states that: (1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies: (a) a party to the proceedings; (b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or (c) a witness in the proceedings; commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year. 1. Producing documents under summons is not dissemination of the relevant information to the public or a section of the public. While the public can encompass just one person, generally the communication must have the "aim of reaching a wide audience": Re Edelsten; Ex part Donnelly (1988) 18 FCR 434 at 436, Morling J. Parties to particular proceedings are not members of the public or a section of the public. 2. The documents produced under summons will only be given to the parties to the proceedings if access to those documents is granted. The Tribunal will not look at any document produced under summons unless a particular document is tendered in evidence by one of the parties. At the hearing the Tribunal will decide whether to admit the document into evidence. Despite not being bound by the rules of evidence, the Tribunal may take into account any objection to the admissibility of that document: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 38(2). 3. Although no-one raised the issue, it is also arguable that correspondence between the Independent Children's lawyer and Dr Milch, as well as his reports and handwritten interview notes, are not an "account of" the Family Court proceedings. An "account" has been held to be "a narrative, description, retelling, or recital of such proceedings": Hinchcliffe v Commissioner of Police of the Australia Federal Police [2001] FCA 1747 at [53]. Even if those documents are an account of the proceedings, there is an exception in s 121 (9) of the Family Law Act for communications "to persons concerned in proceeding in any court, of any pleading, transcript of evidence or other document for use in connections with those proceedings". 4. The offence provision in s 121(1) of the Family Law Act is not a basis for setting aside the summons to Dr Milch. 5. I should emphasise, in case there is any misunderstanding, that under NCAT Procedural Direction 2 entitled "Summonses": Documents and other things obtained under a summons must only be used for purposes directly connected with the proceedings. Using the documents or other things for any other purpose or publishing their contents for any other purpose, may constitute contempt of the Tribunal and be punishable by fine or other orders. 1. In other words, if any party publishes or uses documents obtained under summons for a purpose not connected with the proceedings, that person may be prosecuted for contempt of the Tribunal: NCAT Act, s 73. Even apart from this procedural direction, an implied undertaking prevents any material obtained under a summons from being used for a collateral or ulterior purpose: Plate Glass Holdings Pty Ltd v Fraser Gordon Investments Pty Ltd [2012] FCA 1487 at [22] – [35]. Professional Confidential Relationship Privilege 1. Production of the following two categories of documents was said to be contrary to professional confidential relationship privilege: 1. correspondence between Independent Children's Lawyer and Dr Milch; and 2. Dr Milch's reports for the Family Court. 1. Under Part 3.10, Div 1A of the Evidence Act 1995 (NSW) a court may direct that the contents of a document recording a protected confidence, not be adduced: Evidence Act, s 126B(1). These provisions also apply to pre-trial processes such as a summons to produce documents: Evidence Act, s 131A. A "protected confidence" is defined as "a communication made by a person in confidence to another person" for example, in the course of a doctor/patient relationship: Evidence Act, s 126A. Despite not being bound by the rules of evidence, privileges of this kind bind the Tribunal: NCAT Act, s 38(2) and s 67. 2. But professional confidential relationship privilege does not apply in this case. It is not apparent that any of the requested documents would contain a protected confidence. An example of a protected confidence would be a communication by Russell to his treating doctor. Dr Milch was not Russell's treating doctor and there was no evidence of any confidential communications between them. 3. Professional confidential relationship privilege is not a basis for setting aside the summons to Dr Milch. Apparent relevance 1. The test is whether the documents sought under the summons have apparent, as distinct from actual relevance to the case: National Employers' Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372; Casley-Smith v District Council of Stirling (1989) 51 SASR 447; Portal Software International Ltd v Bodsworth [2005] NSWSC 1115. The principle of apparent relevance has been expressed in various ways including whether the summons has a "legitimate forensic purpose"; "is reasonably likely to add … to the relevant evidence in the case" and whether it appears to be "on the cards" that the document sought will materially assist the requesting party: Becwell Legal Service Pty Ltd v McMaster [2011] FCA 1501 at [25] and [26]. 2. Production of the following categories of documents was said to have no apparent relevance: 1. documents obtained by Employers Mutual from 2013 to 2015; 2. correspondence between Dr Milch and other health professionals regarding Russell Melhem in 2015; 3. correspondence between Dr Milch and lawyers for the parties in the Family Court proceedings in 2015 and 2016. 1. In my view, the documents are apparently relevant to an issue in dispute. That issue is the extent of the risk, if any, that Russell Melhem would attempt to access Evan's firearms. Dr Milch's professional medical opinions about Russell and his credibility, are both apparently relevant. 2. The Commissioner of Police submitted that the request for documents under paragraph (ii), (payments and promises of financial benefit . . ) was a 'fishing expedition'. If a summons is sought for the purpose of discovering a case about which the party is presently unaware, it may be set aside on that basis: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250. 3. Before considering that submission, I note that paragraph (ii) of the summons does not require Dr Milch to produce "documents or things". Rather, it requests "all payments and promises of financial benefits …". Because Evan Melhem was not represented by a lawyer, but by his sister, Prezelia Melhem, as agent, I will assume that Evan Melhem intended to request "any document or thing recording any payment and promises of financial benefits …" 4. If the summons is read in this way, the request for documents about promises of financial benefits is not, in my view, a fishing expedition. If there is evidence that Dr Milch received any payments or promises, that would be relevant to his credibility. I should emphasise that there is no such evidence before the Tribunal at this stage. Oppression 1. A summons may be oppressive if it is too wide or uncertain: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710. The documents for production must be identified with reasonable particularity: Commissioner for Railway v Small (1938) SR (NSW) 564, 574-575 per Jordan CJ. 2. Dr Milch submitted that the request for production of communications between Dr Milch and other health professionals regarding Russell Melhem was oppressive. As far as I am aware, the only other health professional mentioned in the summons is Dr Ip. I do not understand the basis for this submission. 3. The Commissioner also relied on oppression as a ground for setting aside the summons. The request in paragraph (i) was said to be too broad and not limited in time or subject. The Commissioner also said that the reference to 'business records' was vague. 4. Paragraph (i) of the summons is not well expressed. It contains 98 words. Sentences of more than 20 – 25 words are often difficult to understand. Breaking down the request as best I can, Evan Melham begins by describing the nature of the documents he is requesting: All records of conversation, business records, reports, file notes, emails, faxes, dates and times of phone records/calls, electronic communication including Skype and/or any apple application and/or any Google application and/or any Microsoft application 1. That description, while unnecessarily wordy, is capable of being understood. 2. He goes on to identify that the communications must be "between": "… NSW Police, Renee Hudson, Diana Perla, Richard Schonell, Eva Karagiannis, Lorma Gutierrez, Dr Vincent Ip, MDA National, Avant Mutual, Rousell Melhem and any other person with Doctor Anthony Milch and/or employees of Family in Mind and/or any representative of Dr Anthony Milch and/or representative of Family in Mind …" 1. Evan Melhem cannot, in a summons addressed to Dr Milch, request information in the possession or control of another legal entity. While it is not clear whether Family in Mind is a separate legal entity, only documents in Dr Milch's possession or control can be requested. The summons should be understood in that way. 2. Next Evan Melhem identifies the subject matter of the communications: "… regarding Rousell Antanios Melhem (Russell Melhem) and Lorma Guiterrez." 1. The summons is not vague because of the reference to business records. It may not add anything to the other words used but the whole summons cannot be said to be oppressive because of the use of that term. 2. Dr Milch disclosed that supporting documents sent to him by the Independent Children's lawyer, so that he could prepare a report for the Family Court, had been destroyed in accordance with his usual practice. Evan Melhem did not assert that the documents had not been destroyed but submitted that there is no reason they should have been destroyed. Dr Milch is entitled to destroy documents provided to him by a lawyer after the conclusion of the proceedings. I draw no adverse inference about that practice. Summons to MDA National (Dr Milch's professional indemnity insurer) Wording of summons 1. The Tribunal issued a summons at the request of Evan Melhem, to MDA National requesting production of the following documents or things: All records of conversation, business records, reports, file notes, emails, faxes, dates and times of phone records/calls, electronic communication including Skype and/or any apple application and/or any Google application and/or any Microsoft application between Dr Anthony Milch, Det Rebecca Anne Little, Hornsby Hospital and all other parties regarding Rousell Antanios Melhem/Russell Melhem with MDA National. Background 1. MDA National, Dr Milch's professional indemnity insurer, objected to the summonses being issued on grounds I will refer to as restriction on publication of Family Court proceedings, privilege, oppression and relevance. The Commissioner of Police objected on the grounds of relevance, oppression and that it was a fishing expedition. Restriction on publication of Family Court proceedings 1. Production of the following four categories of documents was said to be in breach of s 121(1) of the Family Law Act 1975: 1. correspondence from Mrs Melham (Russell's mother) to MDA National dated 21 March 2016; 2. correspondence between the Independent Children's Lawyer and Dr Milch in 2015 and 2016; 3. correspondence between Russell, Mrs Melhem, and Dr Milch dated 6 April 2016; and 4. Dr Milch's reports for the Family Court dated 8 September 2015 and 6 November 2015. 1. We have addressed items 2 and 4 above. For the same reasons given at [16] to [20] s 121 of the Family Law Act does not apply to those documents. Similarly, it would not be an offence to produce items 1 and 3 because production to the Tribunal is not dissemination to the public or a section of the public. Professional Confidential Relationship Privilege 1. Production of the following three categories of documents was said to be contrary to the existence of professional confidential relationship privilege: 1. correspondence between MDA National and Dr Milch at various times in 2015 and 2016; 2. correspondence between Independent Children's Lawyer and Dr Milch; and 3. Dr Milch's report for the Family Court; 1. Professional confidential relationship privilege does not apply in this case. It is not apparent that any of the requested documents would contain a protected confidence. Oppressive 1. Production of correspondence between Dr Milch and other health professionals regarding Russell in 2015 was said to be oppressive. Hornsby Hospital is the only possible 'health professional' identified. I do not understand how the summons could be said to be oppressive in that sense. Apparent Relevance 1. Production of the following categories of documents was said to have no apparent relevance: 1. documents obtained by Employers Mutual from 2013 to 2015; and 2. correspondence between Dr Milch and other health professionals regarding Russell Melhem in 2015. 1. In my view, the documents are apparently relevant to an issue in dispute. That issue is the extent of the risk, if any, that Russell Melhem would attempt to access Evan's firearms. Dr Milch's professional medical opinions about Russell and his credibility, are both apparently relevant. Summons to Employers Mutual (workers compensation insurer) Wording of summons 1. The Tribunal issued a summons at the request of Evan Melhem, to Employers Mutual requesting production of the following documents or things: (i) All records of conversation, business records, reports, file notes, emails, faxes, dates and times of phone records/calls, electronic communication including Skype and/or any apple application and/or any Microsoft application between the NSW Police, Diana Perla, Mr Richard Schonell, Eva Karagiannis, Lorma Gutierrez, Dr Vincent Ip, Ms Sarah Bird, Rousell, Melhem, Dr Anthony Milch and/or employee of Family in Mind, with Employers Mutual and any of the agents including Lee Kelly Commercial Investigators. (ii) All payments, promises of payments and/or financial benefits made to Rebecca Ann Little, Diana Perla, Eva Karagiannis, Lorma Gutierrez, Dr Anthony Milch by Employers Mutual or its agents in relation to Rousell Antonios Melhem/Russell Melhem. Background 1. Early in 2013, Russell Melhem claimed workers compensation following a workplace incident. Employers Mutual acknowledged that it currently manages a workers compensation claim for Russell Melhem. The records include case conferencing notes, medical and health records and personal interactions between the Russell and Employers Mutual. Russell disclosed that the workers compensation claim relates to an attack on him at his workplace. Reasons for issuing summons 1. There appears to be at least two reasons for issuing the summons. The first is to obtain relevant medical opinions about Russell. The second is to obtain information which may discredit Dr Milch's opinions. Evan Melhem alleges that before the Family Court hearing on 19 November 2015, Dr Milch contacted Employers Mutual and "illegally communicated" with Russell Melham's ex-wife's solicitor, Diana Perla, and barrister, Richard Schonell. Objections and consideration 1. Employers Mutual had four objections to releasing the documents. 2. First, they expressed concern that they would be breaching Russell's privacy if they provided the information. Russell has provided a statement consenting to the release of the information. No authority was provided for the proposition that a potential breach of privacy is a ground on which a summons may be set aside. 3. Second, Russell Melhem's case manager has advised of her genuine concerns about sharing all of Mr Melhem's case records, in particular concerns relating to his psychological welfare and his recovery. No details were provided as to the basis of these concerns and no authority given in support of this ground. 4. Third, Employers Mutual says it is required to obtain icare's consent to produce information in relation to Russell's workers compensation claim. The NSW Nominal Insurer administers the NSW workers compensation insurance scheme through icare, a NSW government agency. Employers Mutual provided no statutory or other basis for its claim that documents addressed to it could not be produced under summons without icare's consent. Assuming Employers Mutual is the correct addressee for the information requested, this is not a ground on which a summons may be set aside. 5. Fourth, Employer's Mutual questioned the relevance of the material. The legitimate forensic purpose was said to be to obtain information about Russell's mental health and any tendency he may have to violence or intimidation. That information is apparently relevant to the question of whether the Commissioner is justified in placing a condition on Evan's firearms licence relating to Russell's access to firearms. 6. Contrary to Employers Mutual's submission, no 'compelling reason' is needed before they are obliged to comply with the summons, nor have they provided any proper grounds for setting aside the summons. Orders 1. The application to set aside the summons addressed to Dr Milch is dismissed. 2. The application to set aside the summons addressed to MDA National Insurance Pty Ltd is dismissed. 3. The application to set aside the summons addressed to Employers Mutual NSW Limited is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 28 November 2016