respondent. 1. The Applicant's request for access to any documents contained in packet S1 (produced pursuant to paragraph B of the summons dated 11 February 2020) is refused. 2. Packet S1 is to be held by the...
Key principles
An applicant seeking access to documents produced under a summons must identify a legitimate forensic purpose for access and show the documents are likely to materially assist on...
Section 99A of the Health Care Complaints Act 1993 (NSW) permits the Health Care Complaints Commission to object to disclosure of information obtained in exercising its functions...
Where the sole ground of appeal is a question of statutory power (a point of law about whether the Medical Council had power under the National Law to impose a 'no practice'...
Issues before the court
Whether the applicant should be given access to documents in packet S1 produced to the Registrar pursuant to paragraph B of the summons.
Whether the HCCC may object to disclosure of documents produced to the Registrar on the basis of s 99A HCCA.
Cited legislation
Plain English Summary
The Tribunal refused the applicant's request to inspect documents in packet S1 produced under a summons. The Health Care Complaints Commission objected under s 99A of the Health Care Complaints Act 1993 (NSW), and the Tribunal found the applicant had not shown a legitimate forensic purpose or a reasonable prospect that the HCCC material would materially assist the narrow legal question on appeal about the Medical Council's power to impose a 'no practice' condition. The objection was upheld and the documents were retained by the Registrar.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,945 words · generated 16/08/2026
What happened
EFQ sought leave to appeal out of time against conditions the Medical Council of NSW imposed on her registration, principally a condition that she not practise medicine and to authorise information exchange with Medicare for monitoring compliance. At a hearing on 20 February 2020 the applicant amended her grounds to a single ground: that the Medical Council lacked power under the National Law to impose the 'no practice' condition and associated information-exchange requirement. Directions were given for written submissions and, separately, the Registrar issued a summons (11 February 2020) calling for documents in two paragraphs (A and B). Paragraph B sought "All written correspondence regarding [the applicant] between the Health Care Complaints Commission, AHPRA and the Medical Council of NSW to date. This is also to include emails."
2 cited instruments linked from this judgment.
Documents were produced to the Registrar. The documents corresponding to paragraph B were divided into packets including packet S1, which comprised documents produced by the Medical Council but which the HCCC said contained material it had provided to the Council under the Health Care Complaints Act 1993 (NSW) and which might be subject to an objection under s 99A. On 11 March 2020 the HCCC formally objected to disclosure of the s99A material to the applicant. EFQ pressed for access to packet S1 after the hearing; the Medical Council and HCCC objected. The Tribunal then decided the procedural question whether to allow inspection.
The Tribunal's decision (Le Poer Trench ADCJ, Principal Member) refused access to packet S1, upheld the HCCC objection under s 99A and ordered the documents to be retained by the Registrar until 28 days after final judgment (Orders 1 and 2).
Why the court decided this way
Two interconnected legal strands drove the decision.
First: the legitimate forensic purpose test for compelled production/inspection. The Tribunal followed established appellate and superior-court authorities (as summarised in the decision from Attorney General for NSW v Dylan Chidgey [2008] and further refined in later authorities such as Rinehart v Rinehart [2018]) that an applicant seeking production or inspection of documents obtained under compulsory process must (a) identify a legitimate forensic purpose and (b) show it is 'on the cards' or otherwise there is a reasonable basis beyond speculation that the documents will materially assist on an identified issue. The Tribunal quoted the core formulation: "Before access is granted ... the applicant must (i) identify a legitimate forensic purpose ... and (ii) establish that it is 'on the cards' that the documents will materially assist his case." That test requires a clear link between the documents sought and the issues joined in the proceedings; mere curiosity or a fishing expedition is not sufficient.
Second: statutory protection under s 99A Health Care Complaints Act 1993 (NSW). Section 99A penalises improper disclosure of information obtained in exercising functions under that Act and expressly provides that a person may not be compelled in legal proceedings to give evidence about, or produce documents containing, any information obtained under the Act (with limited enumerated exceptions). The HCCC relied on s 99A to object to disclosure of material it had provided to the Medical Council for the purposes of complaint assessment and consultation under the Act.
Applying those principles, the Tribunal focused on the applicant's stated sole ground of appeal, a pure question of statutory power under the Health Practitioner Regulation National Law (NSW) (whether the Medical Council could impose the 'no practice' condition). On its face, that is a legal question of statutory interpretation. The Tribunal concluded there was no reasonable prospect that the HCCC material in packet S1 could materially assist that legal question. The applicant had not identified any particular document or line of inquiry within S1 that could alter the resolution of the statutory construction issue. Given that failure, and the protection supplied by s 99A, the Tribunal upheld the objection and refused access.
Practical and procedural observations also influenced the Tribunal. The applicant had not pressed for release of paragraph B documents at the hearing (20 February 2020) despite being represented by counsel at that hearing; while the Tribunal recognised that self-represented litigants may be unaware of procedural steps, the fact the applicant was represented that day was noted as reinforcing that nothing obvious was overlooked or withheld. The Tribunal accepted the HCCC's recitation of the statutory information-sharing scheme (ss 10(2), 12, 15) and its submission that the contested material had been provided to the Council under those provisions for assessment purposes.
Before and after state of the law
Before: The applicable principles were already articulated in appellate and superior-court authorities. Chidgey (and the authorities it summarised) established that a party seeking access to documents obtained under compulsory process must demonstrate a legitimate forensic purpose and that the documents are likely to materially assist on an identified issue. Rinehart and other decisions crystallised how to apply that test in civil contexts, indicating the test focuses on adjectival relevance and the connection to issues in the proceedings, and warning against fishing expeditions.
After: This decision applies those settled tests in the NCAT context where the documents sought are investigatory material provided under the Health Care Complaints Act. It confirms that when the only live issue is a point of statutory power or construction, investigatory material which the HCCC is statutorily entitled to keep confidential under s 99A will not be ordered produced unless the seeking party can identify a real prospect that the material materially assists resolution of that legal issue. Practitioners should read this decision as reinforcing the combination of (a) the legitimate forensic purpose/adjectival relevance test and (b) statutory protections such as s 99A capable of blocking disclosure where the test is not met.
Key passages with plain-English translation
Passage quoted by the Tribunal (summary of Chidgey test):
Court text: "Before access is granted ... the applicant must (i) identify a legitimate forensic purpose ... and (ii) establish that it is 'on the cards' that the documents will materially assist his case."
Plain English: To get a tribunal to force someone to hand over documents, you must explain why you need them for your case and show a real, not speculative, chance those documents will help decide an issue actually raised in the case.
Section 99A reproduced and relied on:
Court text: s 99A makes disclosing HCCC information an offence and says a person cannot be compelled to produce or give evidence about information obtained in exercising functions under the Act (with narrow exceptions).
Plain English: The HCCC has statutory protection over its investigative materials. Unless your situation falls into one of the exceptions in s 99A, the HCCC can refuse to let anyone else see or be forced to produce that material.
Tribunal's applied conclusion:
Court text: "I find the applicant has not established a legitimate forensic purpose ... there is no reasonable prospect that there could be any document ... which might assist the applicant or the Tribunal in determining the legal points now the sole subject of the appeal."
Plain English: The Tribunal concluded the applicant did not show how these complaint files could help decide the narrow legal question before the court, so the files do not need to be released.
What fact patterns trigger this precedent
This decision will be relevant where:
A party in tribunal or court proceedings seeks inspection/production of documents that originated as investigatory or complaint materials provided to a regulator (or another public body) and that body relies on express statutory confidentiality or compulsion protections.
The party seeking the documents is pursuing a narrow legal question of statutory power or construction, as distinct from factual disputes where investigatory records might bear on credibility, chronology or facts in issue.
The issuing of a summons or notice to produce has occurred and the responding entity objects under a statutory regime that contemplates information sharing for assessment but protects investigatory material from disclosure.
There is no pleaded or particularised reason showing how specific documents in the protected material would likely materially assist on an identified issue, i.e., where the seeking party has not turned the request into something with clear, articulable relevance.
By contrast, if the appeal or proceeding raises factual disputes about what occurred that necessarily depend on the content of investigatory files, for example, disputed chronology, evidence of what a regulator was told, or factual assertions underpinning the exercise of discretionary power, the court may find a legitimate forensic purpose and order disclosure notwithstanding statutory protections (depending on statutory wording and exceptions).
How later courts have treated it
This decision applies established authorities (Chidgey and Rinehart) rather than introducing new legal principles. The Tribunal explicitly relied on the legitimate forensic purpose test from Chidgey (as summarised in the Reasons) and the articulation in Rinehart about adjectival relevance and the need to link documents to identified issues. The decision therefore sits as an application of those principles at NCAT to HCCC material. The Reasons themselves record that a Court of Appeal decision was pending which might address the wider question of the Council's power to impose conditions; those outcomes are noted but not determinative of the document-access question the Tribunal decided.
The decision does not record subsequent appellate treatment of these particular orders. Consequently, users should treat this decision as persuasive within tribunal practice and consistent with the well-established appellate line on subpoenas and notices to produce. For authoritative change to the law, appellate or High Court decisions would be required.
Still-open questions
Degree of particularity required: The decision reiterates the need to identify an "identified issue" and to show documents will likely materially assist that issue. It leaves open the precise level of particularity or evidence a seeking party must provide when a document packet is voluminous and the seeking party cannot easily point to a single document. The decision cites authorities that draw the line between permissible targeted exploration and fishing expeditions but does not calibrate thresholds in document-rich regulatory contexts.
Interaction with s 99A exceptions: Section 99A(3) lists exceptions (Royal Commissions, ICAC, special commissions, Ombudsman inquiries). The decision accepted that s 99A protected the HCCC material because the exceptions did not apply. It is an open question in other fact patterns how narrowly a tribunal should interpret those exceptions and whether statutory protections may yield where a party can show necessity to determine a disciplinary body's power in a way no other evidence can resolve.
Timing and procedural conduct significance: The Tribunal noted the applicant did not press for the documents at hearing and was represented at that hearing. It is not finally resolved how heavily procedural failings (not seeking inspected documents at the earliest available point) should weigh against a seeking party in the legitimate forensic purpose analysis, especially where a represented party later changes strategy or adds a different legal basis for appeal (s 159B amendment here).
Competing public interest: The decision applied statutory protection and the forensic-purpose test; it does not engage in a balancing of competing public interests in disclosure beyond the statutory text. Questions remain about whether some regulatory materials, although protected, ought to be released in rare circumstances where fairness or judicial oversight requires disclosure to vindicate legal rights.
Final note: This analysis is a source-grounded explanation of the Tribunal's Reasons in EFQ v Medical Council of NSW [2020] NSWCATOD 52, based on the text of the decision supplied. It is general legal information, not legal advice. I can make mistakes. Before you act on this, rely on it in litigation, or use any draft derived from it, get a qualified Australian lawyer to check and advise.
Judgment (4 paragraphs)
[1]
REASONS FOR DECISION
On 20 February 2020 the Tribunal heard the application of the applicant for leave to appeal out of time, the decision and order of the Medical Council of NSW made 24 October 2018 (with reasons published on 21 December 2018). The applicant also provided submissions in relation to the appeal she filed, should she be granted leave to proceed "out of time". Although the hearing was listed for two days it was concluded in one day as the Grounds of Appeal were amended to one ground only. The ground was read onto the record and is as follows:
"The Medical Council of NSW acted without power when it purported to order on 24 October 2018 that pursuant to section 150 of the National Law the applicant was not to practice medicine AND she was to authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions."
The applicant then set out the order she sought:
"The Applicant sought a declaration or finding that the conditions are a nullity and as a consequence the conditions be declared to be void ab initio."
At the conclusion of the hearing on 20 February 2020, directions were made for the filing of written submissions and judgment was reserved.
The directions made on 20 February 2020 are as follows:
1 In relation to the application by the Applicant for leave to be able to file an appeal against the imposition of conditions, on 24 October 2018, by the Respondent against the registration of the Applicant as a medical practitioner, the Respondent Council is to file and serve its' written submission on that issue by the close of business 21 February 2020. The Applicant is to respond in writing (file and serve) within seven days and the Respondent file and serve any Reply thereto within a further seven (7) day period.
2 The Tribunal notes the Applicant seeks leave to amend the External Appeal form filed 9 January 2020 so as to seek the relief read onto the record today and in so doing relies upon s.159B of the National Law and abandons the appeal based upon s.159. The Tribunal notes that the respondent does not oppose the applicant amending as sought subject to the Applicant being first being granted leave to file her Appeal out of time as referred to in these directions.
3 The respondent seeks an order for costs in relation to the costs thrown away, if any, resulting from the amendment. The respondent is to file and serve written submissions in support of the application for costs on or before the close of business on 21 February 2020. The Applicant is to respond by filing and serving her submissions on the cost application on 21 February 2020.
4 The Tribunal notes that the Applicant relies upon the written submission provided to the Tribunal today (20 February 2020) and marked for identification as A3, in support of her appeal.
5 The respondent is to file and serve on the Applicant, a list of any objections to the evidence of the Applicant, identified in exhibit A5, within seven days and the Applicant is to respond in writing and file and serve within seven days of receipt of the Respondent's list of objections, any response to each objection which the Applicant submits should be rejected.
6 The respondent is to file and serve written submissions in support of its' case and in response to the submissions identified in the document marked A3 by 13 March 2020. The Applicant is to file and serve any Reply to those submissions within seven (7) days of receipt of same.
7 The Respondent is to identify any document (contained in the evidence/documents filed in this case) it relies upon in support of its submission where such evidence/document is additional to the documents identified by the Applicant and marked as exhibit A1, in answer to any of the evidence identified by the Applicant as contained in exhibit A5, or in support of its submission on s.159B.
8 Each party is to include in the written submission filed and served pursuant to direction (5) hereof, any application for costs and any submission in support or rejection of such a costs application.
9 Each party may apply in writing for further directions at any time prior to the Tribunal delivering judgment in this matter.
10 Decision reserved.
11 The Tribunal notes the request of the Applicant that the judgment be published in this matter before 31 March 2020 as the Applicant has a proceeding in the Supreme Court of NSW listed for hearing on that day and the Applicant may wish to rely on the judgment of the Tribunal in support of her case in that court.
12 The Tribunal notes that the respondent has informed the Tribunal that there is a decision pending in the NSW Court of Appeal which may determine whether the respondent has the power to make the conditions complained of by the Applicant.
An issue arose between the applicant and the respondent following the hearing. The applicant, sought to have determined, the requirement of the respondent to comply with the terms of a Summons issued upon the application of the applicant made on 10 February 2020. As it transpired, the documents the applicant sought in the Summons, had been produced, however, there was an objection to the applicant having access to documents contained in a packet marked "S1". The application therefore was really one of the applicant seeking access to packet S1 and the respondent and the Health Care Complaints Commission (HCCC) (whose documents were contained in packet S1) objecting to access being granted.
The Summons was issued by the Registrar on 11 February 2020 and it required compliance by the respondent on or before 9.30am on 17 February 2020. The production of documents called for in the Summons was not raised at all in the hearing on 20 February 2020 nor was there any issue of non-compliance with the Summons raised by the applicant at the hearing on 20 February 2020.
The applicant and the respondent corresponded with the Registrar on the subject of the applicant having access to documents produced to the Registrar pursuant to the subject Summons, following the completion of the hearing. The applicant first raised the matter on Monday 2 March 2020 when she emailed Ms Bridget Andersons and Ms Sara Coutinho (this could have been intended to be Ms Sarah Connors, Legal Manager, HCCC). Ms Andersons identified herself in the email chain, which ultimately was provided to the Registrar, as Senior Legal Officer, Medical Council of NSW.
The email chain, which I have marked as exhibit X1, contains a reply to the applicant from Ms Andersons, on 2 March 2020, where she advised the applicant that the Council pressed its objection to the production of documents in compliance with paragraph A of the Summons. As the applicant ultimately withdrew her requirement for compliance with paragraph A of the Summons I will not describe further what was called for.
On 10 March 2020 the applicant sent an email to the Registrar and to Ms Andersons pressing for access to the documents in paragraph B of the Summons. That paragraph called for the following:
"B. All written correspondence regarding [the applicant] between the Health Care Complaints Commission, AHPRA and the Medical Council of NSW to date. This is also to include emails."
In pressing access to the documents, the applicant said in her email to the Registrar and Ms Andersons:
"I believe the information is important as this is a claim relating to the absence of any procedural fairness by both the Medical Council and the HCCC since early 2018 leading to serious and extreme ramifications to me and my livelihood."
On 11 March 2020 Ms Andersons sent an email to the applicant, which email was ultimately sent to the Registrar by the applicant. That email relevantly said:
"Dear [the applicant], Packet S2 consists solely of documents produced in response to paragraph A of your summons, which you've indicated you are not pressing.
Packets S1 and S3 consist of documents produced in response to Paragraph B. Of these documents:
Packet S1 contains documents the Council produced, noting that they may be subject to an objection from the HCCC under section 99A of the Health Care Complaints Act 1993. It is a matter for the HCCC whether they wish to pursue that objection."
On 11 March 2020 Ms Sara Connors, Legal Manager, HCCC, wrote to the Registrar, Ms Andersons and to the applicant. I have marked that letter as exhibit X2. The letter was provided to the Tribunal members by the Registrar with exhibit X1. The letter advises that "the Commission objects to access being granted to the parties in this proceeding to the s99A material and declines to provide the same material informally to the Applicant." Attached to the letter was a copy of s 99A of the Health Care Complaints Act 1993 (NSW).
Section 99A of the Health Care Complaints Act 1993 (NSW) is as follows:
99A Offence: improper disclosure of information
(1) If a person discloses information obtained in exercising a function under this Act and the disclosure is not made:
(a) with the consent of the person to whom the information relates, or
(b) in connection with the execution and administration of this Act, or
(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or
(d) with other lawful excuse,
the person is guilty of an offence.
Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.
(2) A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercising a function under this Act.
(3) Subsection (2) does not apply to the following proceedings:
(a) proceedings under the Royal Commissions Act 1923 ,
(b) proceedings before the Independent Commission Against Corruption,
(c) proceedings under Part 3 of the Special Commissions of Inquiry Act 1983 ,
(d) an inquiry under the Ombudsman Act 1974 .
Ms Connors specifies under the heading "Grounds for Objection" the following amongst other statements:
"Under the Act the Commission is required to notify the Council of complaints made to it (s10(2)) and a consultation is required to occur between it and the Council (s12) on the assessment of the complaint. As part of the consultation, section 15 of the Act requires the Commission to provide documents to the Council. These are part of the documents which the HCCC packet contains. The Act expressly recognises the need to 'allow complete information sharing between the two arms in the disciplinary scheme' - the Commission and the Council. The contents of the HCCC packet are documents that were provided to the Council for the purposes of assessment of a complaint against [the applicant], HCCC file number 18/00751."
In my view, the first point of focus in the determination of an issue, such as that being considered here, must be the ground of appeal which the applicant will press if she is granted leave to file that application "out of time". The ground of appeal has been stated earlier in these reasons and is purely one going to the power of the Medical Council of NSW to impose a particular condition upon the registration of a registered medical practitioner, namely, that they do not practise medicine. The applicant's appeal ground is that no such power exists. The case outline document, tendered by the applicant, also asserts that there was no power to make the condition complained of because the respondent failed to follow the pathway required by the Health Practitioner Regulation National Law (NSW) (the National Law), however, that does not address the very specific ground now pursued by the applicant.
At the hearing on 20 February 2020 the applicant was represented by counsel who provided an "Outline of Case" document. That document set out argument which clearly addressed the appeal which was brought by the applicant pursuant to section 159 of the National Law. The outline did also address matters which fall within an appeal pursuant to s 159B of the National Law.
On 11 March 2020 the applicant emailed the Registrar and stated as follows: "Dear Registrar, I have noted Ms Connor's letter and continue to press access to the documents." There is no response from the applicant which challenges any of the argument set out in the letter from Ms Connors of 11 March 2020. As such we assume there is nothing in that part of the letter, under the heading "Grounds for Objection", which we have set out above, which is challenged in relation to its accurate recitation of the provisions of the Health Care Complaints Act 1993 (NSW) or the National Law, and the interpretation placed upon the specified sections of those Acts, by Ms Connors.
The law is well settled in relation to the issue for determination in this matter. In Attorney General for New South Wales v Dylan CHIDGEY [2008] NSWCCA 65, at [58]-[64] Beazley JA set out the "Principles governing legitimate forensic purpose." She reviewed decisions addressing the principles and finished with the following:
The correct test
64 The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms:
"The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was."
In Rinehart v Rinehart [2018] NSWSC 1102 Ward J, Chief Judge in Equity, addressed the principle applicable to "legitimate forensic purpose" to the process of seeking access documents produced pursuant to a subpoena. Under the heading "Relevant legal principles" her Honour set out the following:
Relevant legal principles
43 As to what is a legitimate forensic purpose for the issue of compulsory process of this kind (subpoenas or, as considered in some of the cases, notices to produce), the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose:
… it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will.
44 Determining whether there is a legitimate forensic purpose requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist, as observed by Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [33]):
… the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleadings or particulars, or the terms in which it has been expressed are obscure and imprecise.
45 In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, Brereton J described the relevant test (in considering whether to set aside the notice to produce that had there been issued) as being (see at [24]) whether the documents sought have "a sufficient apparent connection to justify their production or inspection" (citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696). His Honour said that the test of adjectival relevance (i.e., as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for "could possibly throw light on the issues in the main case" (at [24]), citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 21 FCR 306).
46 More recently, Gleeson JA, in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 described the permissible scope of a subpoena for production of documents as directing attention to the apparent relevance of the documents sought (see at [22]).
47 Whether the formulation of the test in civil proceedings is best expressed as an "on the cards" test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), or that the material could "possibly throw light on" an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2); or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that "it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]"), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439-440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA).
48 Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena then it may readily be seen to be a fishing expedition. As to what is meant by a "fishing expedition", in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, it was said:
A "fishing expedition", in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere "fishing expedition".
49 Whether a party has cause to believe that particular documents exist is a relevant factor (in conjunction with the potential relevance of the documents sought and the breadth of the subpoena) in determining whether the subpoena is oppressive and/or constitutes "fishing".
50 In Universal Press Pty Limited v Provest Limited [1989] FCA 402, Hill J stated (at [9]-[10]):
Like Clark J, as his Honour then was, in Southern Pacific Hotel Inc v Southern Pacific Hotel Corporation (1984) 1 NSWLR 710 at p 717, I am of the view that there are two separate grounds for setting aside a subpoena that are often confused. The first, to which I have already referred, is the ground that the subpoena is so widely framed as to be burdensome and oppressive and therefore an abuse of process. The second, often linked with the first, is that the subpoena requires the addressee, being a third party to the litigation, to produce all documents which may afford evidence of the matters in dispute between the parties, is thus used as a way of obtaining discovery against a person not party to the litigation and so should be set aside (cf Small's case supra).
Where the objection to a subpoena is that it is a misuse of the process of the Court for the purpose of discovery, what is usually meant is that it is an abuse of process to require a person not a party to litigation to form a judgment as to what is relevant to the issues joined in a proceeding to which he is not a party: National Employers' Mutual Association Ltd v Waind & Hill (1978) 1 NSWLR 372 at p 382. It does not follow that a subpoena, issued in circumstances where the person requesting its issue is uncertain whether any documents exist which fall within the description in the subpoena, that description being otherwise precise, will be bad…
There has been no explanation as to why the applicant failed to press for access to the documents described in paragraph B of the Summons, either prior to the hearing on 20 February 2020, or at that hearing. At one level there may be an acceptance that the applicant, when she is self-representing, is not aware of the requirements of the legal system, including that practised in an NCAT Occupation Division matter. However, at the hearing on 20 February 2020, the applicant was represented by counsel, who I accept, is aware of the requirements, such as the need to press for the provision and inspection of documents, called for in a Summons issued under the hand of the Registrar, prior to the final hearing scheduled for the case. It is reasonable to assume that counsel for the applicant saw no advantage which could flow to the applicant from such an event on that day. We also accept that counsel for the applicant would clearly understand the requirement, in the normal course, for the Tribunal to consider only the evidence which was placed before it in the hearing, which took place on 20 February 2020.
If I disregard the failing of the applicant to press for the release of the subject documents during the hearing on 20 February 2020, and apply the principle set out in the above cited decisions, I find the applicant has not established a legitimate forensic purpose in her having access to the documents in packet S1 produced to the Registrar pursuant to the summons. The appeal grounds only address a question of law based upon statutory interpretation of relevant legislation which controls the limits of power available to the Medical Council of NSW in imposing conditions upon the registration of a registered medical practitioner.
I accept the submission of the HCCC in relation to the Summons pressed by the applicant. We also find that there is no reasonable prospect that there could be any document, amongst those to which the applicant seeks access, which might assist the applicant or the Tribunal in determining the legal points now the sole subject of the appeal she seeks to have heard.
As a consequence I uphold the objection of the HCCC to the release for inspection, by the applicant, to that portion of the documents sought in paragraph B of the Summons and which have been produced in marked packet S1.
[2]
Orders
1. The application, by the Applicant, for access to any documents contained in package marked S1, produced to the Registrar pursuant to paragraph B, of the Schedule to the Summons, issued on 11 February 2020 and addressed to the respondent, is refused.
2. The documents contained in the packet marked S1, as described in order 1 hereof, are to be held by the Registrar, until 28 days after the final judgment, in this matter, is delivered by the Tribunal.
[3]
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
[4]
Amendments
13 May 2020 - Paragraph 19 - typographical error
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: 13 May 2020
1. The Applicant's request for access to any documents contained in packet S1 (produced pursuant to paragraph B of the summons dated 11 February 2020) is refused. 2. Packet S1 is to be held by the Registrar until 28 days after the Tribunal delivers final judgment in the matter.