Supreme Court New South Wales Medium Neutral Citation: Arnold v Matsias (No 2) [2018] NSWSC 922 Hearing dates: 15 June 2018 Decision date: 15 June 2018 Jurisdiction: Common Law Before: N Adams J Decision: (1) The defendant's motion to set aside the subpoena issued upon Mend Physio Kingsgrove on 13 March 2018 is dismissed. (2) Costs be costs in the cause. (3) Access to the documents produced is limited to the party's legal representatives. (4) Consistent with the wording in the schedule to the subpoena, the notes must be redacted so as to prevent identification in any way of the relevant patients. (5) Production is to occur within seven days. Catchwords: CIVIL PROCEDURE – Subpoenas – Application to set aside – Claim brought against defendant physiotherapist in negligence – Subpoena to produce issued to physiotherapy clinic seeking notes concerning unrelated patients – Whether subpoena has a legitimate forensic purpose or constitutes a trawling or fishing expedition Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 33.4 Cases Cited: Alister v The Queen (1983) 154 CLR 404; [1984] HCA 85 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Liristis v Gadelrabb [2009] NSWSC 441 Category: Procedural and other rulings Parties: Simon Arnold (Plaintiff) Chris Matsias (Defendant) Representation: Counsel: R Cavanagh SC (Plaintiff) J Sandford (Defendant) Solicitors: Slater and Gordon Lawyers (Plaintiff) Meridian Lawyers (Defendant) File Number(s): 2015/244084 Publication restriction: Nil Judgment (revised from ex tempore) 1. By statement of claim filed on 20 August 2015, the plaintiff sues the defendant, who is a physiotherapist, for negligence. It is alleged that the plaintiff consulted the defendant on 5 September 2013 and 10 September 2013 for treatment for neck, arm and hand pain. It is further alleged by the plaintiff that the treatment afforded to him resulted in him suffering a left vertebral artery dissection and cerebellar stroke. The plaintiff was taken to hospital by ambulance on 17 September 2013 and is said to suffer disability to the present date as a result of his injury. The proceedings appear to have had a protracted procedural history since they were commenced. They are currently listed for hearing on 10 August 2018. 2. By notice of motion filed on 16 May 2018, the defendant, who is the applicant on this motion, seeks an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 33.4 that a subpoena to produce issued and addressed to Mend Physio, Kingsgrove on 1 March 2018, be set aside in whole or in part, and that the plaintiff pay the defendant's costs of the motion. In support of that motion, the applicant relies upon two affidavits of Claudine Watson-Kyme dated 16 May 2018 and 5 June 2018 respectively. Those affidavits annex the relevant documents necessary to consider the motion. Written submissions were also provided. The plaintiff, who is the respondent on the motion relied upon an affidavit of Catherine Williams dated 29 May 2018 which annexed the relevant clinical records. 3. By way of background there is a significant dispute about the nature of the procedure performed upon the plaintiff by the defendant and whether the plaintiff was warned of, inter alia, any signs and symptoms associated with vertebral artery compromise. The defendant apparently has some limited memory of treating the plaintiff but largely relies upon his notes as to what occurred on 5 September 2013 and 10 September 2013. 4. The material before me on this application shows that in 2014, the year following the treatment being provided to the plaintiff, a request was made of him to provide a copy of his clinical records, which he did. At that stage he was unaware that the plaintiff intended to make a claim against him. He provided records at that time, which included his clinical notes for 5 September 2013 and 10 September 2013. For reasons that will no doubt be explored at the hearing, those notes both describe the relevant treatment as having been provided on 5 September 2014 and 10 September 2014 rather than in 2013. There is no dispute in this matter that the relevant treatment, whatever it precisely involved, was provided on 5 and 10 September 2013. 5. In 2015, when the plaintiff commenced legal proceedings against the defendant, a request was made to provide his notes. At that time the defendant realised that he had erroneously recorded 2014 instead of 2013 in the date columns for the contemporaneous notes he made on 5 and 10 September 2013. He admits that he used liquid paper to blank out the "4" in both of the notes and instead wrote a "3". I have had regard to the two sets of clinical notes and it is apparent that one version of the dates for both 5 and 10 September 2014 have been changed to 5 and 10 September 2013. 6. To understand the significance of this, it is important that I describe the relevant clinical notes. The clinical notes for the plaintiff for both 5 and 10 October 2013 comprise a one page document with the two separate entries on it. On the defendant's case, they were both made contemporaneously at the time of each relevant treatment. Thus on the defendant's case on two separate occasions, on 5 September 2013 and 10 September 2013, the defendant incorrectly entered the wrong year for the treatment being given. That being the year that the request was first made for a copy of the notes. 7. The subpoena issued by the plaintiff on the defendant seeks the following: "The de-identified/redacted clinical records and consultation notes for patients who received physiotherapy performed by the defendant on 5 September 2013 and 10 September 2013 respectively." 1. Ms Sandford of counsel appeared for the defendant on the application. She submitted that the clinical records of the patients have no bearing on the issues joined in the proceedings. She also submitted that the production sought raises discrete issues of privacy and confidentiality and that de-identification is in the low panacea. She submitted that there was no apparent legitimate forensic purpose to the production sought and that rather it has all the hallmarks of an impermissible speculative trawl amounting to an abuse of process. Ms Sandford relied upon the relevant authorities and, in particular, that it is impermissible to call in aid the Court's coercive powers to trawl the documents that may be relevant to an issue of credit when there is no evidence or reason to depose that, "fish of the relevant type be discovered in the pond." As Brereton J observed in Liristis v Gadelrabb [2009] NSWSC 441 at [8], the concept of trawling in this context is the same as that of fishing. 2. Ms Sandford also relied upon the overriding purposes of the Civil Procedure Act 2005 (NSW) and a concern that the late production of this material may lead the parties to seek further expert evidence which may cause further delay in this matter. She submitted that there is a real question as to whether the production sought is genuinely required given the trial is listed for final hearing on 10 August 2018. 3. Mr Cavanagh of counsel appeared on behalf of the plaintiff. He accepted the relevant principles but submitted that there was a legitimate forensic purpose for this material, including the credibility of the defendant, and submitted that the notice would materially assist on a disputed issue in the trial. 4. First, he submitted that the dates are relevant because if, as the defendant contends, on two separate occasions five days apart the defendant inadvertently wrote the wrong year that treatment was being given in his clinical notes, then it is relevant to enquire as to whether he also incorrectly wrote the year as being 2014 in his other notes that day. 5. It is the plaintiff's contention that the notes were not made contemporaneously. Rather that they were written after the fact, possibly after a request was made in 2014 to produce the notes which may explain why the defendant has written that year date in the notes. Second, Mr Cavanagh submitted that at the end of each short entry made on both 5 and 10 September 2013 the words "warnings given" appear. He submitted that that is a somewhat unusual note to make and it is a relevant avenue of enquiry to pursue whether that was standard practice for the defendant. 6. The relevant principles are well established. An authoritative statement can be found in the decision of the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307. I have had regard to that decision. In that matter, the statement of the primary judge, in relation to which the Court of Appeal was satisfied that no error was disclosed, was as follows: "It must be shown that it is likely [that] the documentation will materially assist on an identified issue" and alternatively that there be a "reasonable basis beyond speculation that is unlikely" that the documentation will so assist. The same test has been expressed as being whether it is "on the cards" that the documents will materially assist a case, as described in the High Court decision of Alister v The Queen (1983) 154 CLR 404; [1984] HCA 85 (Gibbs CJ at 414). 7. I accept that the date the defendant has written on his clinical notes on 5 and 10 September 2013 is a relevant issue in this matter. If, as the defendant contends, the mistake was inadvertent on both occasions then it would follow that the same mistake would have occurred on each occasion he saw patients on those respective days. In circumstances where what treatment was offered and the reliability of the notes made by the defendant are important issues in the trial, I am satisfied that it is on the cards that the material would materially assist on this identified issue should it be produced. 8. I am also satisfied that there is a legitimate forensic purpose in the plaintiff being able to learn whether the defendant always writes "warnings given" on his clinical notes. I initially gave consideration as to whether it would be sufficient in this regard to only provide that part of the clinical notes on 5 and 10 September 2013 which refer to any warnings being given. However, as was submitted during the hearing, the difficulty with this approach is that it is easy to contemplate particular scenarios where no warning at all would be necessary when a physiotherapist was to perform a certain procedure. On the other hand, there may be other procedures where such a warning would be required. I make no finding as to any necessity for a warning either way. The fact remains, however, that without knowing what the particular treatment was that was performed that day, simply being provided with notes showing whether or not a note was made that a warning was given to any particular patient is of limited value. 9. Having given the issue further consideration, I am satisfied that simply providing whether a warning was given or not without providing a full note will unnecessarily limit the legitimate forensic value of the document sought. Namely, whether it is out of the ordinary for the defendant to write the words "warning given" in his clinical notes. 10. I have had particular regard to the concern expressed by the defendant that the invasion of privacy and confidentiality must be jealously guarded. So much is to be accepted. Although Ms Sandford has submitted that de-identification is not a panacea, it seems to me that if appropriate orders are fashioned then any invasion of privacy would be minimal and is outweighed by the legitimate forensic purpose of producing the material. 11. I have had regard to the authorities relied upon by Ms Sandford in relation to trawling or fishing for particular information. For the reasons I have already given, I am satisfied that this is neither a trawling nor fishing expedition. Rather, I am satisfied that the clinical notes of the defendant's other patients on 5 and 10 September 2013 go to an unidentified issue, namely, the question of whether the notes were, in fact, written on the day the treatment was afforded. 12. As for the amount of documents involved, the applicant relies upon an affidavit which annexes a schedule of the appointments that the respondent had on both 5 and 10 September 2013. It suggests that only five patients were seen each day. Ms Sandford was unable to verify whether that was the case in the limited time available, but certainly did not suggest that there was such a large number of patients that to produce the notes would be oppressive. That is, although it was not suggested on behalf of the defendant that the subpoena was oppressive in the traditional sense, it was submitted that it was oppressive on the basis that there was no legitimate forensic purpose for it. As I have already indicated, I am satisfied that the plaintiff has identified a legitimate forensic purpose for which access is sought and also established that it is on the cards that the documents will materially assist the case. 13. The parties agree that the appropriate costs order would be the costs in the cause. orders 1. I make the following orders: 1. The defendant's motion to set aside the subpoena issued upon Mend Physio Kingsgrove on 13 March 2018 is dismissed. 2. Costs be costs in the cause. 3. Access to the documents produced is limited to the party's legal representatives. 4. Consistent with the wording in the schedule to the subpoena, the notes must be redacted so as to prevent identification in any way of the relevant patients. 5. Production is to occur within seven days. ********** 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: 25 June 2018