El-Helou v Smith

Civil Procedure Act 2005 LEGISLATION CITED : Social Security (Administration) Act 1999 Social Services Act 1947

Attard v Hore [2002] QSC 437 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 CASES CITED : Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 Merkuloff v Yalisheff [2003] NSWSC 1183 Smith v Swinfield (1981) FLC 91-084 Wray v Wray [2007] NSWSC 164

PARTIES : Mary El-Helou (Plaintiff) Michelle Margaret Smith (Defendant)

COUNSEL : S Brennan (Plaintiff) B Kelleher (Defendant)

SOLICITORS : Brydens Law Office (Plaintiff) Sparke Helmore (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: By her notice of motion filed on 3 June 2009 the defendant seeks an order that the plaintiff provide her with an executed authority directed to Centrelink that would enable the defendant to obtain information held by Centrelink in relation to the plaintiff. The plaintiff opposes that application. Resolution of the dispute arises for consideration in the following circumstances. 2 The plaintiff sues the defendant for damages for personal injuries alleged to have been suffered by her in a motor vehicle accident on 11 February 2000. The plaintiff also sues a different defendant in separate proceedings in this Court for damages allegedly arising from injuries said to have been sustained by her on 27 June 2002 when she fell at hospital premises where she was receiving treatment for the injuries sustained in the motor vehicle accident. 3 Dr Maguire has examined the plaintiff at the request of the defendant who has provided three reports about her. These reports are annexed to an affidavit of Michael Dent sworn 18 June 2009 upon which the defendant relies and which was read on this application without objection. Dr Maguire's reports contain a detailed overview of the medical evidence in this matter by reference to material produced in response to subpoenas issued by the defendant. It is uncontroversial that this material demonstrates that the plaintiff has made applications to Centrelink from time to time and that Dr Maguire has incorporated reference to this fact in his reports. 4 It is accepted by the plaintiff that Centrelink is not and would not be amenable to a subpoena issued by the defendant to it for the production of any documents in its possession relating to the plaintiff. So much appears to follow from the terms of s 207 of the Social Security (Administration) Act 1999 ("the Act"), which is in the following terms: " 207 Protection of certain documents etc from production to court etc

An officer must not, except for the purposes of the social security law or the Farm Household Support Act 1992, be required:

(a) to produce any document in his or her possession; or

(b) to disclose any matter or thing of which he or she had notice;

because of the performance or exercise of his or her duties, functions or powers under the social security law or the Farm Household Support Act 1992 , to:

having power to require the production of documents or the answering of questions." 5 The defendant contends that Centrelink is in possession of material that is relevant to at least its defence of the present proceedings so that an order in the terms that it seeks should be made. In this respect the defendant relies upon cases such as Merkuloff v Yalisheff [2003] NSWSC 1183 and Wray v Wray [2007] NSWSC 164 as well as s 56 of the Civil Procedure Act 2005. 6 The defendant contends that there will be a significant contest at the trial of the proceedings relating to a proper diagnosis of the plaintiff's condition as well as the question of causation both in relation to injuries alleged to have been caused by the motor vehicle accident and their relationship to injuries subsequently received which are the subject of the second proceedings. It appears that there will be a significant dispute concerning histories given by the plaintiff on various occasions relating to her pre-accident and post-accident health. 7 Additionally, the plaintiff makes a claim for domestic assistance. The defendant contends that there will be a significant issue at the trial about the nature and extent of domestic assistance that has been provided to the plaintiff to date, as well as assistance that the plaintiff claims will be required for the future. It would appear that the plaintiff's husband will be promoted as one of the members of the plaintiff's household who has provided and who will provide domestic assistance to her for which compensation is claimed. However, there is information to suggest that at one time the plaintiff applied to Centrelink for a carer's pension in respect of her husband who was himself suffering from a condition requiring her care. The defendant contends that the information held by Centrelink relating to the care provided by the plaintiff to her husband (as well as her daughter) prior to the accident is relevant to the issue of whether or not the plaintiff's family members have been or remain able to provide her with care which is alleged by her to become necessary as a consequence of the motor vehicle accident. 8 The plaintiff also claims economic loss. This claim is based upon a particularised assertion of an intention to return to the workforce in February 2001. Dr Maguire recorded a history taken from the plaintiff that prior to her motor vehicle accident she had been required to care for her husband who had suffered from a head injury and that in December 2001 she had also applied for a carer's pension in respect of one of her daughters. Dr Maguire has also recorded a history that prior to her husband's head injury in 1999 the plaintiff had applied to Centrelink in order to arrange a computer course for her to facilitate a return to work. Consideration 9 In Merkuloff v Yalisheff (supra) Young CJ in Eq considered a motion brought by a defendant seeking an order that the plaintiff in those proceedings authorise Centrelink to provide certain information that it held. At par [19] his Honour said this: "[19] I have no doubt that I have power to make an in personam order to the plaintiff to cause Centrelink to produce the documents to him under the Freedom of Information Act . However, as I say, I do not want the parties to waste lots of money on legal costs and, accordingly, the appropriate order to make is that the plaintiff's proceedings be stayed until the plaintiff forwards to the defendant the information required. How the plaintiff gets that information is a matter for him." 10 That case was followed and applied by Gzell J in Wray v Wray (supra). In that case there was also a request for provision of confidential information from Centrelink. At par [6] in that case his Honour said the following: "[6] The plaintiff referred to two decisions in which this problem has been considered. In Merkuloff v Yalisheff [2003] NSWSC 1183, Young CJ in Eq, in an application by a defendant for Centrelink information, adverted to the provision to which I have referred, observed that there must be some doubt as to whether the power of the Commonwealth was sufficiently wide to prohibit the matters in that section, but formed the view that the defendant could obtain the information by an order in personam against the plaintiff that the plaintiff's proceedings be stayed until the plaintiff forwarded to the defendant the required information." 11 In the course of his reasons for judgment Gzell J referred to the decision of Attard v Hore [2002] QSC 437 where Dutney J ordered the plaintiff to execute an authority for the provision of documents by Centrelink. One of the issues of concern in that case was whether or not the material would be relevant. In the course of his reasons for judgment his Honour made the following comments: "The second basis of the objection by the plaintiff in this case is that the file is not directly relevant. It is said that the provisions of the relevant legislation require disclosure of all information concerning work history and medical conditions as a condition of being able to institute the proceedings, and that is certainly right.

It was submitted on behalf of the plaintiff that to require this further step, that is the disclosure of Centrelink file, would be an unwarranted intrusion into the civil liberties of the plaintiff.

I am not persuaded that the civil liberties argument can be sustained in a case where a party comes to the Court seeking an order from the Court that she be paid a substantial sum of money as a result of injuries which she says she has suffered. It seems to me that the price of seeking such an order from the Court is disclosure of a great deal of material which in other circumstances would be considered confidential. Unfortunately for plaintiffs, that is the price they pay if they want to receive a substantial damages award.

The question of whether the file is directly relevant concerns me a little. The contents of the file are unknown. It is not known whether the forms lodged are consistent or inconsistent with the claims being made by the plaintiff in the action.

Nonetheless, on balance, I am persuaded that they probably have sufficient relevance to meet the test identified by Demack J in Robson v REB Engineering Pty Ltd (1997) 2 Queensland Reports 102 at 105, where his Honour held that directly relevant meant 'something which tends to prove or disprove the allegation in issue'.

Although the evidentiary value of a statement as to her working capacity made by the plaintiff in applying for a benefit from Centrelink may not have a great deal of weight, it does seem to me to be relevant to the question of whether or not she has any residual working capacity." 12 The defendant also submits that her entitlement to an order in the terms sought is supported by comments made by Gzell J in Wray v Wray (supra) at par [14] where his Honour made specific reference to s 56 of the Civil Procedure Act 2005. His Honour said this: "[14] While that is a point of distinction from the instant circumstances, it does not seem to me that the principle underlying the in personam orders in those cases should be different in the case of a plaintiff seeking information from Centrelink with respect to a defendant. A defendant is also obliged to act with candour and assist the Court. The Civil Procedure Act 2005, s 56(3) places a duty on all parties, plaintiffs and defendants, to assist the court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in proceedings." 13 In this respect the defendant also referred to the recent decision of the Court of Appeal in Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at par [36] where Campbell JA reasoned as follows: "[36] The arguments before this court illuminated the difficulty of review of a decision such as that made by the Magistrate. The Civil Procedure Act , ss 56-61 brings about a new statutory balance among various factors in litigation including court and party efficiency and the delivery of individual justice. Delay and case backlog are not merely factors affecting the public cost of delivering justice, they corrode the ability of the courts to provide individual justice. Especially in a court as busy as the Local Court, it is vital that the judicial system work in a way that denies, categorically, the party against whom a legitimate claim or grievance is brought the opportunity to say, with justification: " So I owe you $x, what are you going to do about it? Sue me in Court? That will take years. " The reforms that have taken place under the Civil Procedure Act and the evident attempt by the Local Court to ensure efficiency of service for the public can thus be seen not merely to reflect worthy governmental and judicial efforts for efficiency, but also to be vital for the provision of timely individual justice. …" 14 The defendant contends that at the level, and for the purposes, of the present inquiry the information identified generally as in the possession of Centrelink relating to the plaintiff is relevant to several issues in the proceedings. These have been referred to previously. On the contrary, the plaintiff contends that the appropriate test rises higher than a limited inquiry about relevance to an inquiry about whether or not the documents in question would dispose of, which I take to mean would be determinative of, an issue or issues in the proceedings. The plaintiff contends, having regard to the terms of s 207 of the Act, that there is manifested a clear legislative intention effectively to remove an unwilling party in her position from the prospect of any participation or involvement in a process that could permit or result in the defendant gaining access to material in the possession of a third party, such as Centrelink, that would not otherwise be amenable to production in response to a subpoena directed to that party. 15 The defendant's response to that assertion is twofold. First, as noted earlier, the plaintiff accepts that s 208 of the Act contemplates authorisation by a party in the position of the plaintiff of the production of the information that is sought. In other words, the legislative scheme does not operate in a way that completely proscribes production of the material in circumstances where a party in the position of the present plaintiff is content for it to be provided. In this respect it is instructive to recall the terms of s 208(1)(b)(ii) of the Act which provide as follows: " 208 Disclosure of information by Secretary

(1) Despite sections 204 and 207, the Secretary may:

(ii) to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it; or

…" 16 Secondly, the defendant relies upon what was said by Needham J in Smith v Swinfield (1981) FLC ¶91-084. That was a case involving an application for custody of an ex-nuptial child in which the plaintiff issued subpoenas directed to the Department of Social Security. Section 17(3) of the Social Services Act 1947 relevantly provided that an officer shall not be required to produce in court any document that has come into his or her possession in the performance of his or her duties under that Act. For present purposes, s 17(3) equated to s 207 in this case. In the course of his judgment his Honour said this at 76,582: " The interests of justice require that litigants be able to conduct their cases with a full capacity to produce documents and information unhindered by any implications against such production but, of course, it is in the power of the legislature to prohibit production of any document in a Court if the legislature considers that there is a public interest in the non production of that information or document which has a higher priority than the public interest in the administration of justice." [Emphasis added] 17 The defendant specifically embraced those sentiments in support of her argument that the overriding purpose in s 56 of the Civil Procedure Act 2005 is more than sufficient authority and support for the making of the order sought "in the interests of justice". There is clearly no legislative prohibition upon production of the documents that are sought in this case provided that the route chosen for access to them is limited to, or in accordance with, that contemplated by s 208 (1)(b). I note in passing that s 207 is in any event directed to circumstances involving the prospect of an approach to Centrelink for the provision of information by the issue of a subpoena or in some other way that is either unrelated to any proceedings in which the relevant individual is involved or that is made in the absence of any proceedings at all. In either case, privacy issues would attain potentially greater significance. 18 In the particular circumstances of this case, the defendant submits that there is a significant balance in favour of the making of the order that is sought when a comparison is made between any arguably disadvantageous consequences to the plaintiff that might arise from production on the one hand and the potentially just, quick and cheap determination of one or some of the issues in the proceedings on the other hand. In this respect the defendant made submissions in terms redolent of what was said by Young CJ in Eq in Merkuloff v Yalisheff (supra) at par [17] as follows: "[17] When a person does bring proceedings in this Court, he or she is under an obligation to assist the court in coming to a fair conclusion. If a person deliberately says to their opponent and to the court "I will not co-operate" then the usual consequence is that their action is stayed until they do co-operate." 19 The affidavit upon which the defendant relies includes correspondence between the parties' respective solicitors commencing as early as 9 March 2007 when the defendant requested the plaintiff's signature on an authority directed to the defendant's solicitor permitting contact with Centrelink, among others, in order to obtain any information or documentation relevant to the plaintiff's motor accident claim. The response was a terse refusal contained in a letter sent two weeks later. 20 The defendant made a further request by solicitor's letter dated 28 March 2007 supported this time by reference to the decision of Young CJ in Eq in Merkuloff v Yalisheff (supra). An unadorned response by letter in terms of "[w]e will not be providing any authorities" was sent by the plaintiff's solicitor on 25 May 2007. Apparently undaunted, the solicitor for the defendant made a further similar request by letter dated 1 September 2008. The same response was received by letter dated 1 December 2008. Finally, by letter dated 10 December 2008 the solicitor for the defendant threatened the filing of an application to the Court for orders in terms now sought, and an intention to apply for indemnity costs. The letter in response dated18 December 2008 was in the following terms: "We refer to your letter dated 10 December 2008. Authorities will not [sic, ' be '] provided. This matter is litigated". 21 The defendant contends that the documents are clearly relevant. I agree. The fact of an application by the plaintiff to Centrelink for assistance is potentially relevant to the determination and assessment of her level of capacity from time to time as well as the capacities of her father and her children. The plaintiff is presently in receipt of Centrelink benefits and the information submitted by her, or on her behalf, in support of a claim for ongoing assistance is patently of potential relevant to the matters in issue in this case. These include the nature, cause and development of the plaintiff's current condition. The plaintiff has specifically particularised aggravation of her physical injuries during her participation in a post-accident injury treatment programme at the Royal North Shore Hospital on 27 June 2002. The defendant also submits that a Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 issue is likely to arise to which the nature, timing and substance of information given or applications made to Centrelink by or on behalf of the plaintiff may be relevant. 22 There is no statutory impediment to the production or release of the documents or material that is sought, provided the plaintiff consents. The defendant submits that there can be no reasonable or proper basis for the plaintiff's refusal to co-operate. The plaintiff has never offered any reason in correspondence or otherwise for her failure to do so. The letters of refusal from her solicitors are intransigent but silent and therefore uninformative and unhelpful. The defendant's position is that both the plaintiff's attitude and approach to the present dispute have been wholly inimical to the effective realisation of the overriding purpose. 23 Having commenced these proceedings, the plaintiff fell under and remains bound by an obligation as far as reasonably possible to assist the Court to arrive at a fair conclusion. In the absence of even the hint of some proper reason, (for example but without attempting to be exhaustive) whether founded upon a statutory prohibition or an allegation of prejudice or the demonstration of some legitimate forensic disadvantage or claim of confidentiality or the assertion of privilege, it is difficult to discern any reason why it is not in the interests of the just, quick and cheap disposition of the proceedings to make an order in the terms sought by the defendant. It is also appropriate to bear in mind that despite the plaintiff's attitude to the provision of the requested authority, it is not out of the question that the material that is sought by the defendant may turn out to be wholly supportive of the plaintiff's claims in these proceedings. Such an outcome would have potential beneficial consequences for the just, quick and cheap resolution of this case. 24 In all of the circumstances I consider that the defendant is entitled to the relief that she seeks in the notice of motion. Orders 25 In my opinion the following orders should be made: 1. Order the plaintiff within 14 days to provide to the defendant an executed authority to enable her to obtain any information from Centrelink held or maintained by Centrelink in relation to the plaintiff.

2. Order the plaintiff to pay the defendant's costs of the motion.

3. Grant liberty to either party to apply on 7 days' notice with respect to the form of Order 1 or the terms of Order 2.

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.