First Plaintiff v Defendant

1 This is an appeal from a decision of Associate Justice Evans refusing the defendant's application under r 29.08 of the Supreme Court (General Civil Procedure) Rules 2005 ("the Rules") for an order that the first plaintiff provide certain particular discovery.

2 The appeal raises novel questions about the effect of the Health Records Act 2001 (Vic) ("the Act") in connection with the principles of discovery.

3 A central issue in the appeal is whether, as a result of the Act, any relevant records held by the first plaintiff's treating medical practitioners are to be regarded as being within his own "possession, custody or power"[1] for discovery purposes.

4 I am not satisfied that any such medical records are to be regarded as being within the first plaintiff's possession, custody or power. Nor has the defendant persuaded me that the first plaintiff should in any event be required to make a request to the medical practitioners for the documents with a view to enabling him to give the particular discovery sought. The defendant remains able to apply for third party discovery. The appeal will be dismissed.

5 This proceeding was commenced by writ on 11 July 2008. The first plaintiff is Mr John Psalidis ("Psalidis"). The second plaintiff ("Jam Group") is the corporate trustee of a superannuation fund of which Psalidis has been at all material times a member. The defendant ("Norwich") is a life insurance company.

6 Pleadings have been exchanged and there is certain affidavit material before the Court. The following facts are common ground:

• On 18 July 2007 Norwich issued a "Critical Illness Policy" to Psalidis and also issued a Life and Total and Permanent Disability Policy, in respect of Psalidis, to Jam Group.
• On 10 January 2008 Psalidis lodged a claim with Norwich pursuant to the Critical Illness Policy seeking payment of a benefit of $1.2 million on the basis that he had been diagnosed in December 2007 with a form of cancer affecting the blood known as plasmatcytoma.
• Norwich refused to pay the claim and on 24 April 2008 purported to avoid both policies pursuant to s 29(2) of the Insurance Contracts Act 1984 (Cth) on the basis of alleged fraudulent non-disclosure and alleged fraudulent misrepresentation.

7 In this proceeding Psalidis claims a declaration that he is entitled to the amount of the benefit under the Critical Illness Policy; and the plaintiffs respectively claim that Norwich's purported avoidance of the policies was wrongful, void and of no effect. In the statement of claim, the plaintiffs positively assert that they did not breach any duty of disclosure to Norwich and that they honestly disclosed all matters known to them to be relevant to the risk.

The defendant's allegations of non-disclosure and misrepresentation

8 In its defence, as supported in relevant respects and further particularised by affidavit for the purposes of the present application, Norwich alleges fraudulent non-disclosure and fraudulent misrepresentation. The details of those allegations are summarised in Norwich's written submissions before me, along the following lines:

• On 23 January 2007 Psalidis attended Dr Chew of the High Street Medical Clinic and Dr Chew requested that specimens taken from Psalidis be examined by Melbourne Pathology.
• On the following day, 24 January 2007, Melbourne Pathology reported that the specimen taken from Psalidis' left lateral thigh showed spreading malignant melanoma.
• On 14 February 2007 the malignant melanoma was removed by a surgeon, Dr Houseman, at Cabrini Hospital.
• About 4 months later - on 16 June 2007 - Psalidis lodged an application with Norwich for a Critical Illness Policy and Life and Total and Permanent Disability ("TPD") Policy.
• During the application process Psalidis was asked several critical questions by Norwich and he answered those questions as follows:

"(i) Have you ever had or been told you had or received medical advice, investigation or treatment for ... cancer, cyst or tumour of any kind? No.

(ii) When did you last attend Dr Denis Chew? 10 December 2006.

(iii) For what reason did you attend him and what was the result? Blood pressure check. Good."

• Psalidis did not mention that in January/February 2007 he had had skin specimens removed by Dr Chew, that he had been diagnosed with malignant melanoma or that he had undergone surgical excision of the malignant melanoma.

9 No reply to Norwich's defence was filed. Accordingly, Psalidis is deemed to have joined issue with Norwich's defence save insofar as it contains admissions. Further, Psalidis' solicitors have asserted in a letter to Norwich's solicitors that Psalidis was not aware that he had been diagnosed with a malignant melanoma.[2]

The application for particular discovery and the evidence in support

10 Norwich's application for particular discovery was made by summons filed on 6 May 2009. It sought orders as follows:

"1. An order pursuant to r 29.08 of the Supreme Court (General Civil Procedure) Rules 2005 that the First Plaintiff make particular discovery of the following categories of documents:

(a) all medical notes made by Dr Denis Chew and any other medical practitioner from 12 December 2006 to 18 July 2007 in relation to consultations with the First Plaintiff with respect to his melanoma;

(b) all other documents made or received by Dr Denis Chew and any other medical practitioner from 12 December 2006 to 18 July 2007 that contain information or an opinion about the First Plaintiff's melanoma.

2. The First Plaintiff pay the Defendant's costs of and incidental to the application.

3. Such further or other orders as the Court sees fit."

The summons was made returnable in the Associate Judges' Practice Court 2 days later, on 8 May 2009 (being the same day on which a summons for particular discovery previously issued by Psalidis was due to be heard). The evidence in support was that contained in the affidavit of 6 May 2009 of Norwich's solicitor, Mr Buckhurst. No answering material was filed.

11 The form of the orders sought by Norwich is explained by the history of events set out in Mr Buckhurst's affidavit. On 10 January 2008, in connection with his claim under the Critical Illness Policy, Psalidis gave Norwich a written authority to obtain his Medicare claims history. He also gave a written consent and authority to obtain any other medical information relevant to his claim that Norwich deemed necessary. Norwich received a report from Medicare on 5 February 2008. It covers the period from 1985 until the end of 2007. It reveals, among other things, that Psalidis obtained multiple services from each of eight named medical practitioners between 12 December 2006 and 16 July 2007. (The latter date is the date of issue of the policies). Those eight practitioners were: Dr Iakovidis, Dr Chew, Dr Nelson, Dr Ryan, Dr Houseman, Dr Downey, Dr Bennett and Dr Rose. From the Medicare report it appears that Dr Chew and Dr Iakovidis are general practitioners located at High Street Medical Clinic in Prahran. Dr Chew was apparently seen the most frequently by Psalidis during the period in question. By reference to the Medicare report and a certain histopathology report[3] obtained directly by Norwich from the High Street Medical Clinic pursuant to Psalidis' consent and authority, Mr Buckhurst deposes to a belief that Psalidis' consultations with the various named medical practitioners between 12 December 2006 and 16 July 2007 are likely to have been in relation to Psalidis' melanoma. Mr Buckhurst also deposes to a belief that notes and other types of documents "may exist" in relation to the services provided by the various medical practitioners to Psalidis between 12 December 2006 and 16 July 2007 "in relation to his melanoma".

12 It was apparently in early 2008 that Norwich approached the High Street Medical Clinic for documentary records pursuant to the consent and authority given by Psalidis. The Clinic supplied a bundle of documents comprising 6 pages of handwritten notes and a printed front sheet entitled "Full Summary as at 17 March 2008". (The same bundle was later discovered by Psalidis.) The handwritten pages are notes of histories taken, tests done, observations made and treatments prescribed in respect of Psalidis by doctors attached to the High Street Medical Clinic between January 1997 and 6 May 2006, in chronological order. However it is apparent from the Medicare records that Psalidis continued to attend the High Street Medical Clinic from time to time after 6 May 2006, including the critical period of December 2006-February 2007 during which his alleged malignant melanoma was allegedly diagnosed, but no corresponding notes for those attendances are included. The cover sheet is no more than a partially completed pro forma. It has the appearance of being wholly or partly computer-generated. It contains a small section headed "Current Medical History" in which the following exceedingly brief entries (and no others) appear:

"2007 Iritis

2007 Melanoma

2007 Mole; dysplastic

2005 Hypertension."

These entries tend to confirm that Psalidis remained a patient of the Clinic in 2007 and that he was seen or treated for "Melanoma" during that year. However, Senior Counsel for the defendant submits that what has been supplied so far by the High Street Medical Clinic must be incomplete. He submits, plausibly, that this may be due to a mistake arising from a changeover from manual to computerised records after 6 May 2006. Apparently, the only other relevant medical records presently available to the defendant are the abovementioned histopathology report and two other histopathology reports discovered by Psalidis. It seems that, otherwise, the defendant does not presently have available to it any documents of the categories now sought emanating from any of the 8 specified medical practitioners.

13 On the other hand, as Mr Bingham for Psalidis points out, Norwich apparently considered that it had sufficient information to avoid the policies for fraudulent non-disclosure and fraudulent misrepresentation when it did so on 24 April 2008. Further, at least until this proceeding was issued on 11 July 2008, Norwich could have made more use than it did of the consent and authority signed by Psalidis in January 2008. However it seems to be common ground that, by virtue of s 28(2) of the Evidence Act 1958 as interpreted and applied in Carusi v Housing Commission,[4] the consent and authority would not be operative or effective for the purposes of this proceeding.

14 There was relevant correspondence between the parties' solicitors between 4 February 2009 and 4 March 2009. On 4 February 2009 Norwich's solicitors asserted (apparently for the first time) that Psalidis had a "presently enforceable legal right to obtain his notes from Dr Chew and as such the documents would be found to be in his possession". They sought confirmation that Psalidis would request the missing documents from Dr Chew and execute a further affidavit of documents. They did not suggest that Psalidis should approach any doctors outside the High Street Medical Clinic.

15 Psalidis' solicitors replied on 11 February 2009 to the effect that their client had provided Norwich with a description (and copies when requested) of all documents in his possession.

16 On 18 February 2009 Norwich's solicitors repeated their request. They pointed out that the Medicare report showed that Psalidis had attended doctors practising at the High Street Clinic on 6 occasions between 12 December 2006 and 6 February 2007; and that no notes of any of those consultations had been discovered. They asserted that, given the nature of the treatments billed to Medicare, it would be most unlikely that no notes were entered by Dr Chew or any of his colleagues. They repeated their assertion that Psalidis could obtain the notes at any time. They warned that should a complete copy of Psalidis' history from the High Street Medical Clinic not be received by 20 February 2009 Norwich would "apply to the Court for an order that the Plaintiff make discovery of this document, or alternatively that High Street Medical Clinic make discovery direct, pursuant to rule 31.07". Once again, they did not suggest that Psalidis should obtain information from anyone other than the High Street Medical Clinic.

17 Psalidis' solicitors replied on 4 March 2009. They denied that Psalidis had a presently enforceable legal right to obtain the medical records. They said that he had only a right to request access under the Act and that, if and only if he were to make a request, he may then become entitled to inspect or obtain copies of his medical records, but only if the various conditions set out in the Act were fulfilled. They cited relevant authority, to which I will come.

18 Some two months passed without further relevant action by Norwich's solicitors. Then, on 6 May 2009, the present summons (returnable on 2 days' notice) was issued. Until then, Norwich had made no suggestion that Psalidis should give discovery of any medical records other than those held by the High Street Medical Clinic.

19 Associate Justice Evans dismissed the summons. There is no record before me of the course of proceedings before Associate Justice Evans or of his Honour's reasons for dismissing the summons. However Mr Bingham, who had appeared below, informed me, without contradiction, that Norwich had relied exclusively on r 29.08 and that no alternative or supplementary case had been advanced. Before me, over Mr Bingham's objection, Norwich sought to rely, in addition, on r 1.14(1), r 34.01 and the approach taken by the Federal Court in Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Co,[5] to each of which I will in due course refer.

20 The following provisions of Order 29 (Discovery and Inspection of Documents) are the most relevant:

**"**29.01 (2) In this Order possession means possession, custody or power.

...

29.02 (1) Where the pleadings between any parties are closed, any of those parties may, by notice for discovery served on any other of those parties, require the party served to make discovery of all documents which are or have been in that party's possession relating to any question raised by the pleadings.

...

29.03 A party upon whom a notice for discovery is served shall make discovery of documents[6] within [a specified period].

...

29.05 In order to prevent unnecessary discovery, the Court may, before or after any party is required to make discovery by virtue of a notice for discovery served in accordance with Rule 29.02, order that discovery by any party shall not be required or shall be limited to such documents or classes of document, or to such of the questions in the proceeding, as are specified in the order.

...

29.08 (1) This Rule applies to any proceeding in the Court.

(2) Where, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any question in the proceeding may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating -

(a) whether that document or any, and if so what, document or documents of that class is or has been in that party's possession; and

(b) if it has been but is no longer in that party's possession, when the party parted with it and that party's belief as to what has become of it.

(3) An order may be made against a party under paragraph (2) notwithstanding that the party has already made or been required to make an affidavit of documents.

...

29.09 (1) A party upon whom an affidavit of documents is served in accordance with Rule 29.03 or in accordance with an order made under Rule 29.07 or 29.08 and a party to whom an affidavit of documents is supplied in accordance with Rule 29.06 may, by notice to produce served on the party making the affidavit, require that the party produce the documents in that party's possession referred to in the affidavit (other than any which that party objects to produce) for inspection.

...

29.11 Where a party -

(a) fails to make discovery of documents in accordance with Rules 29.03 and 29.04;

(b) fails to serve a notice appointing a time for inspection of documents as required by Rule 29.09 or 29.10;

(c) objects to produce any document for inspection;

(d) offers inspection unreasonable as to time or place; or

(e) objects to allow any document to be photocopied or to supply a photocopy of the document -

the Court may order the party to do such act as the case requires.

...

29.16 If the Court gives directions about discovery or inspection of documents, no party may, without further order, serve notice for discovery on any other party except in accordance with those directions."

"1.14 (1) In exercising any power under these Rules the Court -

(a) shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined;

(b) may give any direction or impose any term or condition it thinks fit."

"34.01(1) At any stage of a proceeding the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.

(2) A party may apply for directions on the hearing either of a summons filed for the purpose or of a summons for other relief."

"32.07 On the application of any party to a proceeding the Court may order that a person who is not a party and in respect of whom it appears that that person has or is likely to have or has had or is likely to have had in that person's possession any document which relates to any question in the proceeding shall make discovery to the applicant of any such document."

24 Norwich's submissions may be summarised as follows:

(a) Rule 29.08 applies where it appears to the Court that "there are grounds for a belief that some [relevant] document or class of documents ... may be or may have been in the possession of a party". (my emphasis)

(b) Under the Rules, "possession" includes "power".

(c) Therefore it is enough for an order under r 29.08 that there be grounds for a belief that the documents in question may be in the power of Psalidis.

(d) However, acting under r 29.08 alone, the Court may only be able to make an order requiring Psalidis to state by affidavit whether or not the documents in question are (now) in his power (and an order requiring him to make discovery of them if they are).

(e) Given Psalidis' attitude to date, it can be anticipated that he would say in any such affidavit that the documents are not now in his power (on the asserted basis that they will not come into his power unless and until he makes a request under the Act and a decision is made to grant him access to the documents).

(f) The Court should short-circuit this. In exercising the power under r 29.08, the Court should give a direction pursuant to r 1.14 and r 34.01(1) that Psalidis take such steps and make such requests and do such things as may be reasonably necessary to obtain and give to Norwich inspection of Psalidis' medical records. A corresponding approach was taken by Marks J in Palmdale Insurance Ltd (In Liquidation) v L. Grollo & Co Pty Ltd[7] and was repeated by his Honour in C.E. Heath Underwriting & Insurance (Australia) Pty Ltd v Fabric & Apparel Industries[8] and followed by Hedigan J in Linfa Pty Ltd v Citibank Ltd[9] and by Lockhart J (in the Federal Court) in Sabre Corporation Pty Ltd v Russ Kalvin's Hair Co.[10]

(g) Further or alternatively, the Court should be satisfied that the medical records are indeed already in Psalidis' power, by reason of the Act. On that basis alone the Court should require Psalidis to make particular discovery of the two categories of documents specified in the summons.

25 Senior Counsel for the appellant indicated that he had structured and ordered his submissions in the way just summarised because it might enable me to avoid navigating through what he called the "heavy traffic"[11] of the case law and statutory provisions relevant to the question whether the documents in question are, now, in the "power" of Psalidis.

26 However, I have formed the view that it would be inappropriate to attempt to "short-circuit" the matter by giving directions of the kind suggested. The "heavy traffic" cannot be avoided. Indeed I think it is desirable to confront the question of power at the outset.

27 Norwich accepts that Australian courts have frequently applied[12] a definition of "power" given by Lord Diplock (with whom the other members of the House of Lords agreed) in the context of a dispute about discovery in Lonrho v Shell Petroleum Co Ltd.[13] In its written submissions Norwich refers to the following passage from Lonrho as containing that definition:

".... the expression 'power' must, in my view, mean a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else. Provided that the right is presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power ... ."

28 I think it is desirable to include the remaining part of the unfinished sentence at the end of the quotation, as follows:

"... but in the absence of a presently enforceable right there is, in my view, nothing in Order 24 to compel a party to a cause or matter to take steps that will enable him to acquire one in the future."

29 Lonrho involved a claim that certain companies should discover and produce documents in the possession of their overseas subsidiaries. Lord Diplock noted[14] that it might well be that the voluntary consent of the board of a particular subsidiary could be obtained, but observed that the parent was not required by the Rules of Court to seek it "any more than a natural person is obliged to ask a close relative or anyone else who is a stranger to the suit to provide him with copies of documents in the ownership and possession of that other person, however likely he might be to comply voluntarily with the request if it were made".

30 Norwich submits that Lonrho should not be applied in a restrictive manner. It refers to the following comment of Marks J in Palmdale Insurance (in liquidation) v L Grollo and Co Pty Ltd:[15]

"In my view the full reach of the meaning of the word 'power' has not been settled by what was said by Lord Diplock in Lonrho's Case'."

Marks J noted that Lord Diplock had concluded the relevant part of his judgment by saying:

"In dismissing the subsidiaries' appeal on its own special facts, I expressly decline any invitation to roam any further into the general law of discovery. In particular, I say nothing about one-man companies in which a natural person and/or his nominees are the sole share-holders and directors. It may be that, depending upon their own particular facts, different considerations may apply to these."

Marks J emphasised that Lord Diplock's observations had to be understood in the context of the special facts of Lonrho. His Honour said that the facts in Palmdale were very different. But the particular difference that proved to be of significance in Palmdale was that the relevant documents had originally been created by the defendant itself (from whom production and inspection was sought) and had therefore, obviously, been in its power (and, indeed, in its possession and custody) at an earlier time. Accordingly, on ordinary principles, there was no doubt that the defendant was required to disclose the documents in its affidavit of documents. Hence, Palmdale was not a case about discovery but a case about production and inspection. The same can be said of the similar case of C.E. Heath Underwriting[16] referred to above. In Sabre[17] there was no suggestion that the documents in question were within the "power" of the relevant party at the time that the orders in question were made, notwithstanding that there was a real likelihood that that party would be given access to the documents on request.

31 I turn to Linfa Pty Ltd v Citibank Ltd.[18] It is true that in Linfa Hedigan J held, distinguishing Lonrho on the facts, that the defendant company should be required to make discovery of certain relevant documents that were in the possession of two subsidiaries. After a close analysis of the facts, his Honour found that the subsidiaries were not operating as separate legal entities, that they were both staffed by the staff of the parent company and that they were not operating on their own behalf but on behalf of the parent company. On that basis his Honour concluded that the parent company had "possession, power and control over the relevant documents physically within the possession of the subsidiaries ... ".[19] However, in two respects, Linfa needs to be read with caution. First, Hedigan J made extensive reference to Palmdale and to the subsequent judgment of Marks J in C.E. Heath Underwriting,[20] without drawing attention to the fact that both Palmdale and C.E. Heath Underwriting were production and inspection cases, not discovery cases. Second, the Full Court of the Supreme Court of South Australia has expressed serious reservations about certain aspects of the reasoning of Hedigan J in Linfa. In Taylor v Santos,[21] Olsson J said, referring to Linfa:

"Citibank resisted an order for discovery on the basis of the reasoning in Lonrho. Hedigan J rejected that contention saying:

• the reference to a presently enforceable legal right by Lord Diplock meant a right then lying within what he described as the 'armoury' of powers of the party seeking a document, rather than one which might be acquired by the taking of subsequent steps, eg by buying a controlling interest in the relevant company; and
• 'it is a proposition to be doubted that a parent company does not have an immediately enforceable legal right to inspect its subsidiary's documents. Such a description of power is not meant to imply instantaneous right of inspection, but refers to the right to gain inspection through the courts on the basis of the position then prevailing'.

I here pause to comment that, with respect, it is very difficult to align the above reasoning with that of Lord Diplock and the concept that the rule looks to the present and past, not to the future.

...

It is immediately apparent that the decision in Linfa was the product of a very special set of facts in which the technical, corporate structure simply did not reflect the reality that the defendant simply utilised it to conduct what was essentially a single integrated business operation, directly staffed and controlled by Citibank itself. In a somewhat different fashion the practical situation exhibited unique features which, conceptually, placed it in the exceptional category envisaged by Lord Diplock in Lonrho, when he instanced some situations such as so-called 'one-man' corporate structures.

I do not read anything in Linfa which can properly found an arguable challenge to the core concepts articulated by their Lordships in Lonrho. If it were otherwise then Hedigan J's attempt to pierce or lift the corporate veil would, necessarily, turn long settled principles of corporate law, established by courts of the highest authority, on their head."

Doyle CJ[22] and Prior J[23] expressed agreement with these remarks of Olsson J. More generally, in remarks with which Prior J expressly agreed, Doyle CJ said:[24]

"In my opinion the court should be cautious in extending the concept of power beyond the concept of a presently enforceable legal right, even though it may be appropriate to do so. Reading r 58 as a whole, my view is that the obligation to discover a document is limited to a document that the person in question has the legal power or (I can think of no better expression) actual and immediate ability to inspect, even though the document is the property of or is held by another person. That power or ability might exist in relation to a document that a person is not able to produce for inspection to a third person, for example a document in which a person has joint property with another person. But, in my opinion, the obligation to discover hinges upon having a right or actual and immediate ability to examine the document. A person does not have that right or actual immediate ability if the person is able to inspect the document only if a third person, who has control of the document, agrees to permit inspection, or agrees to refrain from so exercising that person's control as to prevent inspection. I add, at the risk of speaking too generally, that in considering these issues the court is not concerned with issues of practicality. For example, a document might be in the power of a person in the sense just explained, but be thousands of kilometres away and difficult to get to, or it might be close at hand but stored in a warehouse and very difficult to locate.

The point I wish to emphasise is that to the extent that the concept of power extends beyond a presently enforceable legal right, it should be held to so extend only when the court can say that the person in question does have the actual immediate ability to inspect the document. Otherwise, I consider, the law would place an impossible obligation upon a party. I consider that the cautious extension which I contemplate was the sort of thing that Lord Diplock had in mind in [his Lordship's reference to 'one-man companies']."

32 Norwich refers in particular to the observation of Hedigan J in Linfa that the Lonrho description of power "is not meant to imply instantaneous right of inspection but refers to the right to gain inspection through the courts on the basis of the position then prevailing". Despite the observations of Olsson J in Taylor v Santos[25] to which I have referred, it seems to me that that particular observation of Hedigan J, standing on its own, is entirely in line with Lonrho and with the many cases which have followed Lonrho. On the other hand, in my view, it does not assist Norwich in this case, because, for reasons I will explain in due course, I am not satisfied that Norwich has "a right to gain inspection through the courts on the basis of the position [now] prevailing". Indeed I note that, a little earlier in his judgment in Linfa,[26] Hedigan J had referred with apparent approval to the decision on which Psalidis now principally relies, namely Theodore v Australian Postal Commission.[27] In Theodore Murphy J held that the plaintiff, who had previously made a Commonwealth workers' compensation claim, was not obliged to discover relevant documents to which he might have been able to obtain access by calling for them under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) or by making a request for them under the Freedom of Information Act 1982. I will return to Theodore.

33 In a very recent judgment of the Supreme Court of New South Wales, Bova v Avati,[28] Ward J surveyed many of the cases in this field. Her Honour expressed[29] the view (with which I would respectfully agree) that, "to the extent that Marks J suggested in Palmdale that documents which a party would be likely to obtain if it made a request (but which it had no presently enforceable legal right to obtain) are within its power that proposition ... is inconsistent with the majority of cases which have adopted formulations similar or identical to that found in Lonrho".[30] Ward J referred with apparent approval to the passage from the judgment of Doyle CJ which is set out above, noting (correctly) that Taylor v Santos was one of the relatively few appellate judgments on the subject.

34 As mentioned above, Norwich concedes that Lonrho has been frequently applied in Australia, including in several cited Victorian cases. I too propose to apply it, as it was explained by Doyle CJ in Taylor v Santos.

The Health Records Act 2001

35 Norwich claims that if any documents falling within the specified categories exist then they are in the "power" of Psalidis for the purposes of discovery, by virtue of the provisions of the Act. I am not satisfied of that.

36 Putting aside any special contractual terms, at common law in Australia individuals do not have a right of access to their medical records. That was confirmed by the High Court in 1996 in Breen v Williams.[31] Gaudron and McHugh JJ said:[32]

"In the present case, it is not possible, without distorting the basis of accepted legal principles, for this Court to create either an unrestricted right of access to medical records or a right of access, subject to exceptions. If change is to be made, it must be made by the legislature."

37 The Victorian legislature did make a change in 2001, by the passage of the Act. But there is a need to examine the true nature and extent of that change.

38 Norwich asserts that the Act gives Victorians a "legal right to access their medical records".[33] That proposition is overstated. As I will indicate, there are significant exceptions to the right of access. And it is a "legal" right in a limited sense only. The right cannot be directly enforced in the usual way in which legal rights are enforced, namely in the ordinary courts. In some cases it may not be able to be enforced at all, much less immediately. Overall, in my opinion, it does not answer the Lonrho description of a "presently enforceable legal right (of access to medical records)". Nor does it provide to Victorians "an actual and immediate ability to examine (their medical records)", in the sense referred to by Doyle CJ in Taylor v Santos. In any event, the relief sought by Norwich is discretionary and, taking into account the general tenor of the Act and all the circumstances of the case, I consider that the Court should, at present, exercise its discretion against requiring the plaintiff to make a series of requests under the Act at the behest of Norwich. I turn now to an examination of the salient provisions of the Act.

39 The Act is not concerned solely with granting individuals a right of access to their health records. It is also centrally concerned with protecting the privacy of health information relating to individuals.

40 Section 1 of the Act states its purpose, as follows:

The purpose of this Act is to promote fair and responsible handling of health information by -

(a) protecting the privacy of an individual's health information that is held in the public and private sectors; and

(b) providing individuals with a right of access to their health information; and

(c) providing an accessible framework for the resolution of complaints regarding the handling of health information."

41 In section 3, "health information" is widely defined, but it does not include health information that is prescribed as exempt health information. "Health service" is also widely defined, but again the definition allows for the prescription of exemptions. Similarly, the wide definitions of "health service" and "health information" each contemplate that exemptions might be prescribed. On the other hand, it appears that, to date, no exemptions under those definitions have been prescribed. "Organisation" covers a broad range of private and public sector entities that hold health information.

42 Section 6 of the Act sets out its objects. It provides:

(a) to require responsible handling of health information in the public and private sectors;

(b) to balance the public interest in protecting the privacy of health information with the public interest in the legitimate use of that information;

(c) to enhance the ability of individuals to be informed about their health care or disability services;

(d) to promote the provision of quality health services, disability services and aged care services."

Reading the purpose clause and the objects clause together, one sees a concern to advance and protect the interests of individuals about whom health information is kept by public sector or private sector organisations, balanced only by public interest considerations.

43 The Act expressly disclaims any overriding effects. It gives way to any inconsistent provision made by or under any other Act: s 7(1). Nothing in it affects the operation of the Freedom of Information Act 1982 (Vic) (except as otherwise provided by that Act): s 7(2).

44 Section 8 of the Act is important for present purposes. It provides:

(a) gives rise to any civil cause of action; or

(b) without limiting paragraph (a), operates to create in any person any legal right enforceable in a court or tribunal -

otherwise than in accordance with the procedures set out in this Act.

(2) A contravention of this Act does not create any criminal liability except to the extent expressly provided by this Act."

45 Information in the possession of public sector organisations remains accessible only in accordance with the Freedom of Information Act 1982: s 16.

46 Section 18 provides that an act or practice of an organisation is "an interference with the privacy of an individual" if, among other things, "the act or practice is or results in a failure to provide access to health information that relates to the individual in accordance with Part 5 or HPP6".

47 "HPP6" is one of the "Health Privacy Principles" set out in Schedule 1 to the Act. It deals with both access to health information and the correction of such information. Insofar as it relates to access it provides:

6.1 If an organisation holds health information about an individual, it must provide the individual with access to the information on request by the individual in accordance with Part 5, unless -

(a) providing access would pose a serious threat to the life or health of any person under section 26 and refusing access is in accordance with guidelines, if any, issued or approved by the Health Services Commissioner under section 22 for the purposes of this paragraph; or

(b) providing access would have an unreasonable impact on the privacy of other individuals and refusing access is in accordance with guidelines, if any, issued or approved by the Health Services Commissioner under section 22 for the purposes of this paragraph; or

(c) the information relates to existing legal proceedings between the organisation and the individual and the information would not be accessible by the process of discovery in those proceedings[35] or is subject to legal professional privilege; or

(d) providing access would reveal the intentions of the organisation in relation to negotiations, other than about the provision of a health service, with the individual in such a way as to expose the organisation unreasonably to disadvantage; or

(e) the information is subject to confidentiality under section 27; or

(f) providing access would be unlawful; or

(g) denying access is required or authorised by or under law; or

(h) providing access would be likely to prejudice an investigation of possible unlawful activity; or

(i) providing access would be likely to prejudice a law enforcement function by or on behalf of a law enforcement agency; or

(j) a law enforcement agency performing a lawful security function asks the organisation not to provide access to the information on the basis that providing access would be likely to cause damage to the security of Australia; or

(k) the request for access is of a kind that has been made unsuccessfully on at least one previous occasion and there are no reasonable grounds for making the request again; or

(l) the individual has been provided with access to the health information in accordance with Part 5 and is making an unreasonable, repeated request for access to the same information in the same way.

6.2 However, where providing access would reveal evaluative information generated within the organisation in connection with a commercially sensitive decision-making process, the organisation may give the individual an explanation for the commercially sensitive decision rather than access to the information.

Note

An organisation breaches HPP 6.1 if it relies on HPP 6.2 to give an individual an explanation for a commercially sensitive decision in circumstances where HPP 6.2 does not apply.

6.3 If access is refused on the ground that it would pose a serious threat to the life or health of the individual, the procedure in Division 3 of Part 5 applies.

6.4 Without limiting sections 26 and 27, nothing in this Principle compels an organisation to refuse to provide an individual with access to his or her health information.

...

6.10 An organisation must provide written reasons for refusal of access ... ."

48 So far as relevant, sub-sections (1) and (2) of s 21 provide:

(1) Subject to this section ..., an organisation must not do an act, or engage in a practice, that is an interference with the privacy of an individual.

(2) Subsection (1) does not apply if the organisation proves that, in the circumstances, compliance with this Act or the Health Privacy Principle would have contravened another Act, regulations made under another Act or an order of a tribunal or of a court of competent jurisdiction."

49 Under s 22, the Health Services Commissioner may issue guidelines relating to, among other things, situations in which providing an individual with access to health information about the individual would pose a serious threat to the life or health of the individual or any other person, for the purposes of HPP 6.1(a); or would have an unreasonable impact on the privacy of other individuals, for the purposes of HPP 6.1(b).

50 Part 5 deals with access to health information. It commences with s 25, which, so far as relevant, provides:

(1) ... an individual has a right of access, in accordance with this Part and HPP 6, to health information relating to the individual held by a health service provider or any other organisation."

"26 No access to health information where threat to life or health of individual or another person

An organisation must not give an individual access under this Act to his or her health information, or part of his or her health information, if the organisation believes on reasonable grounds, having regard to the guidelines, if any, issued or approved by the Health Services Commissioner under section 22 for the purposes of HPP 6.1(a), that the provision of the health information, or that part of the health information, would pose a serious threat to the life or health of the individual or any other person."

52 Where health information about an individual is given in confidence to an organisation by a third party the organisation "must not" give it to the individual without the third party's consent: s 27.

53 The right of access may be exercised in various specified ways, at the option of the individual, including inspection. Another way is by receiving a copy of the health information (or a print out of it if it is stored in electronic form): s 28, 29.

54 Section 31 provides that before giving a person access to health information the organisation must take reasonable steps to be satisfied about that person's right to it and, for that purpose, may require evidence of the person's identity or authority.

55 Regulated, small fees may be charged for providing access: s 32.

56 An individual may make a request for access orally or in writing, but the request must identify the individual and must sufficiently identify the health information to which access is sought and must specify the way in which the individual wishes to have access. If the request is made orally, the organisation may require the individual to put it in writing: s 33.

57 Under s 34, within 45 days of receiving a request an organisation must either -

• give a written (permissible) reason for refusal of access to the health information;
• if charging a fee, notify the individual thereof and provide access within 7 days after payment of the fee or within 45 days after receiving the request, whichever is the later; or
• in every other case, give access to the health information as soon as practicable but not later than 45 days after receiving the request.

58 In certain specified situations, an organisation will be deemed to have refused a request: s 35.

59 Special procedures apply under Division 3 of Part 5 where an organisation refuses access on the ground that providing access would pose a serious threat to the life or health of the individual. In essence, an organisation may, if it considers it would be desirable, offer either to discuss the health information with the individual or to arrange for a mutually acceptable health service provider to discuss it with the individual. If an offer of the latter kind is made and accepted, the mutually acceptable health service provider (called in the Act the "nominated health service provider") may form an opinion on the validity or otherwise of the refusal and, if satisfied that to do so would not constitute a serious threat to the life or health of the individual, may allow the individual to inspect the health information or, if the organisation agrees, to have a copy of it: s 42(1)(c), (d), (e), (f). However the Act declares that the forming of an opinion by the nominated health service provider as to the validity or otherwise of the refusal is not an interference with the privacy of the individual to whom the information relates: s 42(4). Hence no complaint can be made under the Act about the forming of such an opinion.

60 By s 44, the provisions of the Act are, in effect, incorporated into the contract between an individual and a health service provider, and contracting out is prohibited.

61 The resolution of any dispute about a refusal of access[36] is governed principally by Part 6 of the Act, which is headed "Complaints".

62 Any complaint by an individual about an "act or practice that may be an interference with the privacy of the individual" must be made in the first instance to the Health Services Commissioner (not any tribunal or court) and must be in writing: s 45(1). A complainant may request that his or her complaint be expedited and give grounds for the request: s 45(5). The Commissioner must notify the respondent in writing of the complaint as soon as practicable: s 48. Within a "reasonable period" but not later than 90 days after the complaint is lodged, the Commissioner must decide whether, and to what extent, to entertain the complaint: s 49(1). If the Commissioner considers it appropriate, he or she may attempt to resolve the complaint informally: s 49(3). Otherwise, until the Commissioner makes his or her preliminary assessment of the complaint under s 49 and s 56[37], the individual can do nothing to advance it.

63 The various grounds on which the Commissioner may decline to entertain a complaint are set out in s 51(1). They all turn on the Commissioner's opinion, rather than objectively determined circumstances ("... if the Health Services Commissioner considers that ..."). They include situations where the Commissioner considers that the act or practice complained of "is not an interference with the privacy of an individual" (s 51(1)(a)), or that the complainant has not previously complained to the respondent (s 51(1)(c)), or that the complaint to the Commissioner was made more than 12 months after the complainant became aware of the act or practice (s 51(1)(d)), or that the complaint is "frivolous, vexatious, misconceived or lacking in substance" s 51(1)(e), or that the subject matter of the complaint is being or could be adequately dealt with by other means (s 51(1)(f), (g), (h)). If the act or practice could be made the subject of an application under the Information Privacy Act 2000 (Vic), the Privacy Act 1988 (Cth) or the Disability Act 2006 (Vic), the Commissioner may refer it off accordingly: s 51(3).

64 Within 60 days after receiving a notice from the Commissioner declining to entertain a complaint, the complainant may require the Commissioner to refer the complaint to the Victorian Civil and Administrative Tribunal ("the Tribunal"): s 51(5)(b). If the complainant does not do so (within time), the Commissioner may dismiss the complaint and, in that event, the complainant may take no further action under the Act in relation to the subject matter of the complaint: s 51(9).[38]

65 If the Minister considers that the subject matter of a complaint raises an issue of important public policy, the Minister may refer it directly to the Tribunal: s 54.

66 Where the Commissioner decides to "accept" a complaint, he or she may, by virtue of s 56(1) -

• decide to conciliate it under Division 3 of Part 6; or
• decide to investigate it with a view to making a ruling on it under Division 4; or
• if he or she considers that, in the circumstances, conciliation or the making of a ruling is inappropriate, decide to decline to further entertain the complaint.

Pursuant to s 56(4) the Commissioner must notify the complainant and the respondent in writing of his or her decision under s 56(1). The notice must state that the complainant may require the Commissioner to refer the complaint to the Tribunal for hearing under Division 6: s 56(5).

67 Within 60 days of receiving the Commissioner's notice under s 56(4), the complainant, by written notice, may require the Commissioner to refer the complaint to the Tribunal for hearing under Division 6: s 57(1); and the Commissioner must then do so: s 57(2). Strangely, s 57(3) provides that if the complainant does not notify the Commissioner under s 57(1) (regardless, apparently, of the nature of the Commissioner's decision under s 56(1)) the Commissioner may dismiss the complaint. If the Commissioner dismisses the complaint, the complainant may take no further action under the Act in relation to the subject matter of the complaint: s 57(5).

68 The Commissioner must cease dealing with an issue raised in a complaint if, among other things, he or she becomes aware that the complainant or the respondent has begun "legal proceedings which relate to that issue": s 58(1)(a) (my emphasis); or becomes aware that "proceedings relating to that specific issue" have been initiated before a court or tribunal: s 58(1)(b) (my emphasis); or considers that the issue should properly be dealt with by a court or tribunal: s 58(1)(c).

69 Division 3 of Part 6 (containing ss 59-63) makes provision for the powers and procedures of the Commissioner in relation to conciliation of complaints. If, following conciliation, the parties reach an agreement, a signed and certified record of the agreement may be prepared and a copy may be lodged with the Tribunal for registration: s 61(1), (2). Sub-section 61(3) provides that, subject to s 61(4), the Tribunal must register the record. However, s 61(4) provides that if the Tribunal, constituted by a presidential member, considers that it may not be practicable to enforce, or to supervise compliance with, a conciliation agreement, the Tribunal may refuse to register the record of the agreement. On registration, the record must be taken to be an order of the Tribunal in accordance with its terms "and may be enforced accordingly": s 61(5). The refusal of the Tribunal to register the record of a conciliation agreement does not affect the validity of the agreement: s 61(6).

70 There is no express limit on the time that may be taken in the conciliation process. During that process (at least, after the expiry of the abovementioned 60 day period prescribed by s 57(1)), the complainant has no power to require that the matter be referred to the Tribunal. However, if the Commissioner has "attempted unsuccessfully to conciliate a complaint" he or she must decide whether to investigate it under Division 4 or to take no further action on it, and must notify the parties accordingly: s 63(1). Either way, after receiving the notice, the complainant may require the Commissioner to refer the complaint to the Tribunal for hearing under Division 6: s 63(2), (3), (4). Failing a response from the complainant within 60 days either agreeing to an investigation or requiring a referral, the Commissioner must dismiss the complaint: s 63(6), (7); and, again, that would be the end of the matter under the Act.

71 Procedural and other provisions about investigations and rulings are contained in Division 4. Once the complainant has agreed to a proposed investigation by the Commissioner, the complainant has no further opportunity to require that the matter be referred to the Tribunal until the Commissioner has completed the investigation and made a ruling: see s 63(4)-(7) and s 65(1) combined. Although the Commissioner is required by s 68 to proceed with expedition, there is no fixed time limit for investigations and rulings.

72 A ruling must be notified in writing and be accompanied by reasons. It must include the action, "if any",[39] that the Commissioner specifies to remedy the complaint: s 64(3)(b); and it must include a specified period, not exceeding one month, within which any such action must be taken: s 64(3)(c). When action is required, the respondent must report in writing to the Commissioner on the action taken. Failure to report is a criminal offence, with a penalty of 10 penalty units: s 64(7). The Commissioner must pass on the contents of the report to the complainant: s 64(8). If the respondent fails to comply with the ruling or fails to report, the complainant may require the Commissioner to refer the complaint (not the ruling) to the Tribunal, for hearing: s 65(1).

73 The Commissioner may serve a "compliance notice" on an organisation if it appears to the Commissioner that the organisation has committed a "serious or flagrant" contravention of the Act or has committed repeated contraventions: s 66(1). It is an offence not to comply with a compliance notice, with a penalty of 3000 penalty units for a corporation and 600 penalty units for an individual. The Commissioner may serve a compliance notice on his or her own initiative at any stage and irrespective of whether a complaint has been made. Alternatively, he or she may do so on the application of an individual who was a complainant, where the complaint was the subject of a conciliation agreement or was determined by the Tribunal (as distinct from the Commissioner): s 66(5). It seems to follow that a complainant cannot apply to the Commissioner for the service of a compliance notice on the basis of a ruling by the Commissioner even in the case of a serious, flagrant or repeated contravention, although the Commissioner could apparently serve a compliance notice on his or her own initiative following a ruling[40] if the qualitative or quantitative requirements of s 66(1) were met.

74 The upshot of these provisions is that a complainant cannot unilaterally take any steps to enforce any ruling of the Commissioner as such.

75 Division 6 deals with the hearing of complaints by the Tribunal. As mentioned already, individuals aggrieved by a failure to grant access to their medical records cannot approach the Tribunal in the first instance. They must lodge a complaint with the Commissioner first. Moreover, complainants can never themselves commence a proceeding in the Tribunal under the Act, except to seek an interim order under s 73. Apart from s 73, the jurisdiction of the Tribunal may only be enlivened by a referral by the Commissioner under s 51, s 57, s 63 or s 65 or by a referral by the Minister under s 54: see s 74. On the other hand, it is true that the Commissioner must accede to a requirement by a complainant under s 51(5), s 57(1), s 63(4), s 65(1) or s 65(2) that the complaint be referred to the Tribunal. Thereafter the parties to the proceeding are the complainant and the respondent, but not the Commissioner unless joined by the Tribunal. The Tribunal must commence hearing a complaint by the Minister under s 54 within 30 days,[41] but no such time limit applies to any other cases.

(1) After hearing the evidence and representations that the parties to a complaint desire to adduce or make, the Tribunal may -

(a) find the complaint or any part of it proven and make any one or more of the following orders -

(i) an order that the respondent provide the complainant with access to health information that relates to the complainant;

(ii) an order restraining the respondent, or the organisation of which the respondent is the committee of management, from repeating or continuing any act or practice the subject of the complaint which the Tribunal has found to constitute an interference with the privacy of an individual;

(iii) an order that the respondent perform or carry out any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, including injury to the complainant's feelings or humiliation suffered by the complainant, by reason of the act or practice the subject of the complaint;

(iv) an order that the complainant is entitled to a specified amount, not exceeding $100 000, by way of compensation for any loss or damage suffered by the complainant, including injury to the complainant's feelings or humiliation suffered by the complainant, by reason of the act or practice the subject of the complaint; or

(b) find the complaint or any part of it proven but decline to take any further action in the matter; or

(c) find the complaint or any part of it not proven and make an order that the complaint or part be dismissed; or

(d) in any case, make an order that the complainant is entitled to a specified amount to reimburse the complainant for expenses reasonably incurred by the complainant in connection with the making of the complaint and the proceedings held in respect of it under this Act."

I note in particular s 78(1)(b), which expressly confers a discretion on the Tribunal to decline to take any further action in a matter even after finding the complaint proven.

77 Section 96 provides that, despite any other section, the Act does not apply in relation to a document that is the subject of legal professional privilege, and does not affect the law or practice relating to legal professional privilege.

78 Section 97 confers immunity from liability upon persons acting in good faith in relation to void or defective notices, requests, consents or authorisations given or apparently given under the Act.

79 Section 99 provides that it is the intention of section 8 to alter or vary section 85 of the Constitution Act 1975.

Summary of the restrictions and limitations on the "right" of access to medical records under the Act

80 Clearly the Act does not create what Gaudron and McHugh JJ in Breen v Williams[42] called "an unrestricted right of access to medical records".

81 Under the legislation as it presently stands[43] restrictions and limitations on the "right" of access arise from -

• any inconsistency with any provision made by or under any other Act or with any order of a tribunal or of a court of competent jurisdiction: ss 7(1), 21(2);
• in the case of public sector organisations, the exemptions set out in the Freedom of Information Act 1982: ss 7(2), 16;
• in the case of private sector organisations, the exceptions set out in HHP6(1)(a) - (l) inclusive, as affected (in the cases of HPP6(1)(a) and (b)) by any guidelines under s 22 and by the provisions of ss 26 and 27 respectively;
• in the case of a perceived serious threat to life or health under HPP6(1)(a), a mere belief on reasonable grounds on the part of the organisation that such a threat exists (s 26) or a mere opinion on the part of the nominated health service provider that a refusal of access on that basis was valid;[44]
• the imposition of fees (albeit regulated and modest): s 32;
• the freedom of the organisation to take up to 45 days to deal with a request: s 45;
• the necessity to bring any complaint to the Commissioner in the first instance: ss 8(1), 45(1);
• the unavailability of direct recourse to any tribunal or court: ss 8(1), 74, 99;
• the potential delay of up to 90 days while the Commissioner makes a preliminary assessment of a complaint: ss 49(1), 56;
• the several bases on which the Commissioner may decline to entertain a complaint or may refer a complaint off, all effectively turning on the Commissioner's opinion: s 51(1), (3);
• the various situations in which the Commissioner may, or must, finally dismiss a complaint on account of inaction for a period of 60 days by the complaint: ss 51(9), 57(3), 63(6) and (7);
• the existence of any legal or other proceedings on a related issue in a court or tribunal, or the formation of an opinion by the Commissioner that the issue should properly be dealt with by a court or tribunal: s 58;
• the potential for indefinite delays during conciliation or investigation of a complaint: Division 3 of Part 6 generally;
• the unenforceability of a ruling of the Commissioner: ss 64, 65, 66;
• the discretion of the tribunal to decline to take any further action in the matter even in a case where it finds the complaint proven: s 78(1)(b).

82 These restrictions and limitations bear two relevant aspects. First, they establish a range of exceptions by reference to which an organisation may legitimately refuse access to medical records. Second, they set up a special, exclusive, highly attenuated dispute resolution mechanism outside which the rights created by the Act are not enforceable at all. At least in combination, they lead to my not being satisfied that the documents in question are within Psalidis' "power" on the Lonrho/Taylor v Santos test.

83 The exceptions are numerous and potentially very broad. Some of them are expressed in a "catch-all" fashion. For example, s 7(1) gives primacy to any inconsistent provision made by or under any other Act. Similarly, HPP6.1(f) covers cases "where providing access would be unlawful" and HPP6.1(g) covers cases where "denying access is required or authorised by or under law". These particular "catch-all" exceptions, which apply to access claims in particular, are not to be read down by reference to the more general provisions of s 21(2),[45] under which an organisation may be absolved of responsibility for an "interference with the privacy of an individual", but only where the organisation proves that compliance with the Act or the HPP would have contravened another Act or regulations or an order of a tribunal or court.

84 Further, there is at least one ground of refusal which appears to be effectively beyond challenge before either the Commissioner or the Tribunal. In combination, s 26, Division 3 of Part 5 (ss 36-42) and HPP6.1(a) seem to repose in the organisation, or, failing agreement, in the nominated health service provider - not in the Commissioner or the Tribunal, much less the courts - the power finally to decide whether to give access to health information where the organisation believes on reasonable grounds that giving access would pose a serious threat to the life or health of the individual or any other person.

85 Norwich argues that cases where an organisation believes on reasonable grounds that the release of information would pose a serious threat to life or health will be rare and, further, that there is no indication that any such concern might arise in the present case. Norwich points to the fact that, pursuant to Psalidis' consent and authority of January 2008, the High Street Medical Clinic has already released some health records relating to Psalidis, including the histopathology report containing a reference to "malignant melanoma".[46]

86 However, there is no expert or other evidence before me as to how frequently, or in what kinds of circumstances, health service providers might form a reasonable belief that giving a person access to his or her medical records would pose a serious threat to the life or health of that person or another person. As to the case of Psalidis himself, the relevant histopathology report was released to Norwich, not Psalidis. Further, it is mainly couched in technical language, being language that, perhaps, the Clinic may have considered was impenetrable by most lay persons and therefore less likely to cause Psalidis distress if somehow he were to see it following its release to Norwich. In any event, in relation to a person who was allegedly diagnosed with a malignant melanoma and who claims not to have been told by his doctors about any such diagnosis, and who has since been diagnosed with another very serious disease, it is conceivable that the remaining relevant records (if any) of the various medical practitioners might contain material the release of which a responsible health service provider might consider likely to pose a serious threat to the life or health of the patient or another person.

87 In relation to the exceptions generally, questions of onus of proof might be thought to arise. In a contest at VCAT between an individual and an organisation holding health information about the individual, the organisation would very likely have the onus of establishing the applicability of an exception.[47] However, in a discovery application like the present, I do not think that the individual must step into the shoes of the relevant organisation or organisations and prove that an exception or exceptions would apply. Generally speaking, without (at least) making a statutory request and obtaining a decision from the relevant organisation(s), the individual will not and could not know what records exist or the contents of any relevant records or whether they contain any confidential information or whether denying access is required or authorised by law or whether any of the other circumstances listed in HPP6.1[48] exist. It is true that the party seeking discovery against the individual will not usually be in any better position to address the exceptions. But that party ultimately needs to assert before the court that certain documents, though admittedly not in the possession of the individual, are nevertheless within his or her power. (As indicated above, Norwich itself seems impliedly to recognise that, in the present case, it would be idle to rely on the words "may be" in s 29.08. In any event, in my view, it would be idle to do so: see and compare Dart Industries Inc v Prestige Group (Australia) Pty Ltd[49].) The usual guiding principle is that he or she who asserts must prove. This may sometimes involve proving a negative,[50] which can be extremely difficult. In any event, the relevant proposition here (that none of the exceptions would apply) is not really susceptible of proof. There could rarely, if ever, be any admissible evidence on the question, given that the organisation in possession would not be a party to the discovery application and that therefore, usually, neither the contents of the documents nor the full circumstances under which they were created nor the attitude of the organisation nor any other relevant circumstances pertaining to the organisation will be known to or readily ascertainable by any of the parties to the discovery application.

88 Accordingly, it seems to me that the case should be considered on a more general basis. The real question is one of construction of the Act as a whole in the light of the authorities on "power".

89 In my view, the present case is quite closely analogous to the case on which Psalidis principally relies, namely Theodore v Australian Postal Commission,[51] to which I have already briefly referred. In Theodore, the defendant had submitted that all documents on the file of the Commissioner of Employees' Compensation relating to the claims previously made by the plaintiff against the Commonwealth for compensation for the injuries in question should be discovered. According to the defendant, all those documents were in the power of the plaintiff. Some of the documents, the defendant argued, were covered by s 61(2) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) under which, if a claimant was dissatisfied with a determination of the Commissioner, the claimant could, on request, obtain from the Commissioner a copy of the documents that had been furnished to the Commissioner on behalf of the claimant and also a copy of the documents that had been furnished to the Commissioner on behalf of the Commonwealth. Further, according to the defendant, all of the relevant documents on the Commissioner's file were accessible by the plaintiff under the Freedom of Information Act 1982 (Cth). As to that Act, Murphy J noted[52] that it had as its object "to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth" and that the general right of access to information in documentary form was limited only by "exceptions and exemptions". I note further that s 11 of the Freedom of Information Act 1982 (Cth) provided:

"11(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

(2) Subject to this Act, a person's right of access is not affected by:

(a) any reasons the person gives for seeking access; or

(b) the agency's or Minister's belief as to what are his or her reasons for seeking access."

90 Murphy J differentiated sharply between documents that the plaintiff himself had sent in to the Commissioner of Employees' Compensation and other documents that might have been on the Commissioner's file, such as documents that the Commonwealth may have lodged. Documents that had originally emanated from the plaintiff himself were held to be discoverable by him. But not so any other documents. In that regard Murphy J said:[53]

"But merely because the plaintiff could have called upon the Commissioner to provide, if dissatisfied with the determination, a copy of the defendant's documents filed in opposition to any such application, does not, in my opinion, mean that such documents were at any time in his power. Unless he did in fact so call for them (s.61(2)) the plaintiff would not even be aware what such documents were. But if he did call for them, and did receive them then, of course, they would be discoverable.

As to the effect of the Freedom of Information Act 1982 on the issue whether documents thought available to be obtained on proceedings taken under that Act are, before any such proceedings are taken, in the 'power' of a party, I would not myself, in the absence of precedent binding me, incline to the view that such documents are discoverable - that is to say, unless and until such proceedings are taken and the documents are obtained. For if such documents are obtained after the affidavit of discovery is sworn, then, a further supplementary affidavit becomes necessary - or, at the very least, notice must be given to the other side: Mitchell v. Darley Main Colliery Co. (1884) 1 Cab. & El. 215."

91 Murphy J distinguished Palmdale in the same way as I have already distinguished it, namely on the basis that in Palmdale the party in question had previously been in possession of the documents and had discovered them accordingly; so that the issue in Palmdale had been one of production and inspection, not discovery.[54] His Honour then referred to Lonrho and said:[55]

"The phrase in his 'possession, custody or power' looks to the present and the past, not to the future. The essence of this view lies in the right being 'presently enforceable'. It is not to the point that the party could take steps that, if successful, will or may enable him to acquire such a right in the future."

92 Returning to the issues before him in Theodore, Murphy J noted[56] that every request for access under the Freedom of Information Act 1982 (Cth) was subject to a decision in respect thereof by the responsible Minister or an appropriate Departmental officer. His Honour said:

"There is no evidence in the present case as to what the decision might be, and the Act is so circumscribed that I do not think it possible to say that the files referred to would automatically be made available or be copied or that the plaintiff has a presently enforceable right to them."

Murphy J expressed his conclusions on the documents in question as follows:[57]

"I do not accept that other documents upon the Commissioner's files relating to any such claim or claims, which documents may have come from the possession of the defendant or from some other source, documents of which the plaintiff has never had possession, custody or power, and the existence of which is probably unknown to the plaintiff, are to be discovered by him, as within his 'power', simply because he had, at some time or other, a right, if dissatisfied with the Commissioner's determination, to request them, or simply because he might, pursuant to the provisions of the Freedom of Information Act 1982, make a request that they be furnished to him."

93 Norwich invited me to distinguish Theodore by reference to differences between the pieces of legislation considered in that case and the Act.

94 No doubt differences exist. For example, the Freedom of Information Act 1982 (Cth) has potential application to a vast range of different types of information in documents in the possession of the Commonwealth and its agencies. Correspondingly, that Act provides for exceptions and exemptions that may cover a great deal of ground. By comparison, the subject matter of the (Health Records) Act is principally confined to information relating to the health of individual Victorians. But, in relation to that particular field of information, the Act makes extensive provision for exceptions and exemptions, as I have indicated. Indeed, the Act makes far greater provision for exceptions and exemptions than did the relevant sections of the Compensation (Commonwealth Government Employees) Act 1971 which were also considered in Theodore. That Commonwealth Act contained some secrecy provisions to which Murphy J referred,[58] but it seems that none would have been applicable to a request by the claimant for documents lodged by the Commonwealth. No other exceptions or exemptions were identified. Despite this Murphy J was of the view that at no time (even during a period when the plaintiff was dissatisfied with a determination of the Commissioner) would the documents lodged by the Commonwealth have been in the power of the plaintiff.

95 It seems to me that Theodore is not substantially distinguishable from the present case.

96 Norwich submits that if I cannot distinguish Theodore I should decline to follow it. However I am not prepared to accept that invitation.

97 Theodore has been referred to with approval or apparent approval on several occasions.[59] For example, in Rogers v Hougland,[60] referring to documents in the possession of the Department of Social Security and the Tax Office, Zeeman J said:

"Consonantly with the observations appearing in Theodore v Australian Postal Commission (supra) and Harris v Australian Broadcasting Commission (supra),[61] I consider that the relevant documents are not presently in the power of the plaintiff merely by the operation of the provisions of the Freedom of Information Act."[62]

98 In C. E. Heath,[63] Marks J considered Theodore and, in particular, the remarks that Murphy J had made about the prior judgment of Marks J in Palmdale. Counsel had suggested that Palmdale and Theodore were in conflict. Marks J did not agree. He said[64] that the facts and circumstances of Theodore were "radically different" from those of Palmdale. He expressed no criticism of anything said by Murphy J in Theodore relevant to the "power" question with which I am dealing. As a matter of precedent, I should follow Theodore (so far as it is relevant) unless convinced that it is clearly wrong.[65] I am not so convinced.

99 Turning to the impact of the second aspect of the restrictions and limitations contained in the Act, I note that, to satisfy the Lonrho test (putting aside for the moment the Taylor v Santos "extension" to that test) any "right" to inspect medical records that an individual may have under the Act must be a presently enforceable, legal right within the meaning of that test. In my view, any "right" conferred by the Act to inspect medical records does not answer that description.

100 As I have indicated, an individual dissatisfied with a refusal of access under the Act cannot go straight to a court or tribunal and demand a binding order. He or she must go first to an administrative officer, the Commissioner, and make a complaint. Various administrative hurdles and delays, and various limitations on the available remedies, may then intervene. Correspondingly, in the Second Reading Speech for the Health Records Bill,[66] the Minister for Health, Mr Thwaites, made the following comments concerning enforcement of the "right" created by the Act:

"Enforcement

The Health Services Commissioner will have principal responsibility for monitoring compliance with the Health Records Bill and for resolving complaints about interferences with privacy.

The commissioner's functions and powers for dispute resolution are modelled on those that currently exist under the Health Services (Conciliation and Review) Act 1987, and on the comparable powers of the Victorian Privacy Commissioner under the Information Privacy bill 2000.

The Health Services Commissioner may conciliate a complaint under the bill. The commissioner can also investigate a complaint, and if appropriate, may make a ruling. A ruling would be appropriate if the commissioner finds that there has been interference with privacy. In such a case, the commissioner can recommend the course of action that should be taken by the organisation to remedy the breach. A ruling is not binding, although the organisation must inform the commissioner as to whether it intends to comply with the ruling.

If the complaint is not resolved to the complainant's satisfaction, he or she will be able to seek a binding decision from the Victorian Civil and Administrative Tribunal (VCAT). VCAT will be able to make a variety of orders to rectify or remedy an interference with privacy. Organisations may also appeal to VCAT against rulings and compliance notices imposed by the commissioner.

Other enforcement mechanisms include criminal penalties for serious breaches of the Act.

Like the Victorian Privacy Commissioner, the Health Services Commissioner will be able to serve a compliance notice on an organisation that has performed an act or practice that is a serious or flagrant contravention of the act, or is a breach which is of a kind that has been done or engaged in by the organisation on at least five separate occasions within the previous two years. A failure to comply with a compliance notice is an indictable offence. A respondent can apply to VCAT to have the decision to serve the notice reviewed.

A key aim of the legislation is to ensure that complaints are resolved informally, wherever practicable. The alternative dispute resolution mechanisms set out in the bill are designed to minimise the risk of escalation of disputes, for example, by encouraging conciliation. However, the VCAT appeals procedure and the compliance notice process are available to address situations where these mechanisms are not adequate.

The commissioner will also have the function of issuing or approving binding guidelines as required under the health privacy principles, and will have an important role in educating the community about the operation of the legislation.

Section 85 statement

Clause 99 of the bill states that it is the intention of clause 8 to alter or vary section 85 of the Constitution Act 1975.

I therefore wish to make a statement pursuant to section 85 of the Constitution Act 1975 of the reasons why that section is to be altered or varied by the bill.

Clause 8 provides that the bill does not give rise to any civil cause of action or create any legal right enforceable in a court or tribunal other than as specifically provided in the bill. Similarly, nothing in the bill is to be construed as giving rise to criminal liability except to the extent expressly provided for.

The bill is intended to create specific rights and obligations in relation to the privacy of health information, which can be enforced through the dispute resolution mechanisms set out in the bill, including through conciliation, investigation and rulings by the Health Services Commissioner and review by the Victorian Civil and Administrative Tribunal.

The bill is not intended to give rise to broader rights and obligations outside those expressly provided in the bill. It is not intended to create any other legal means of enforcing those rights. The reason for the alteration or variation to section 85 of the Constitution Act 1975 is to ensure that the scope of the bill meets these expectations."

101 It is true, as Norwich submits, that the complaint procedure has some similarities with a judicial process in that, generally speaking, it invokes powers (of the Commissioner and the Tribunal) to examine whether an existing right has been wrongly denied or infringed, as distinct from powers to create a new right.[67] However, the Commissioner cannot make a binding ruling. It is true that, eventually, the Tribunal could do so; and, despite Mr Thwaites' reference to "review" by the Tribunal, strictly speaking the Tribunal would be exercising its original inter partes jurisdiction, rather its review jurisdiction, in doing so. Section 78 empowers the Tribunal to make various orders, including "an order that the respondent provide the complainant with access to health information that relates to the complainant": s 78(1)(a)(i). And, under s 122 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") a person may enforce a "non-monetary order" of the Tribunal by filing in the Supreme Court a copy of the order, an affidavit as to non-compliance with the order and a certificate from a judicial member stating that the order is appropriate for filing in the Supreme Court. That process involves steps that would not be necessary if an order could be made by a court, but I acknowledge that, rather strikingly, s 133 of the VCAT Act provides that it is a criminal offence not to comply with a non-monetary order of the Tribunal. Nevertheless, whatever the issues as to access may be in a particular case, a complainant may have to wait, powerless, for up to 90 days for the Commissioner to decide whether even to entertain his or her complaint. Only after the Commissioner makes a preliminary assessment can the complainant demand a referral to the Tribunal. That opportunity itself lasts for only 60 days. If it is missed, another may not arise for an indefinite period.

102 Moreover, as mentioned above, the Tribunal itself has an express discretionary power to decline to take any further action even if it finds the complaint proven: s 78(1)(b).

103 In Theodore,[68] Murphy J considered that the mere fact that every request under the Freedom of Information Act 1982 (Cth) was subject to a decision by a designated officer (under statutory provisions that were "so circumscribed") meant that it was not possible to say that the documents in question would be automatically made available or that the plaintiff had a "presently enforceable right" to them. His Honour did not pay particular attention to the nature of the review mechanisms available under the Freedom of Information Act 1982. Had he done so, his Honour might well have been confirmed in his view that the right of access was not a presently enforceable legal right. Under the Freedom of Information Act 1982, a compulsory first step is an application for internal review, followed by an application to the Administrative Appeals Tribunal. Both of those review mechanisms are administrative, rather than judicial, in nature. In that respect, the right of access conferred by the Freedom of Information Act 1982 (Cth) is, if anything, even less a "presently enforceable legal right" than the right conferred by the Act. On the other hand, under the Freedom of Information Act 1982, at least there is no discretion to refuse to grant access to a non-exempt document, whereas, as just mentioned, under s 78(1)(b) of the Act the Victorian Tribunal has express power to take no action even where a complaint is proved. In neither case can an applicant "acquire control by immediate demand followed if need be by immediate action".[69] Overall, the right conferred by the Act is not appropriately described as a "presently enforceable legal right".

104 As to the Taylor v Santos "extension" to the Lonrho test, I am by no means satisfied that Psalidis has, now, an actual and immediate ability to inspect any relevant medical records that may be in the possession of the eight specified medical practitioners. Psalidis' position is not comparable with that of the controller of a "one-man company" holding admittedly relevant documents. Psalidis would need to fashion an appropriate request - probably in writing - addressed to each medical practitioner and await at least a primary decision in each case. He may even need to pursue a further decision by the Commissioner and another by the Tribunal. Because of the permitted delays and the nature and the breadth of the exceptions to the right of access to which I have referred, there could be no assurance that Psalidis would be given direct and immediate access to the records.

105 Neither counsel referred to any English authority on corresponding statutory provisions. However, for completeness, I would mention Nixon v Channel 4 and Others.[70] In that case the Court of Appeal of England and Wales had occasion to consider briefly the relationship between discovery and the Access to Health Records Act 1990 (UK). That Act is substantially similar to the Victorian Act. Subject to various exceptions, it gives individuals a right to inspect and to obtain copies of their medical records. In the unusual circumstances of the case, the Deputy Judge below had made an order preventing the defendants from filing a witness statement by one of the defendants and a witness statement by a Mr Hughes, each containing assertions as to the witness' health, unless at the same time consents were given to the plaintiff to enable him to obtain medical records relating to the health of the witnesses. The defendants appealed on the ground, among others, that the Deputy Judge had had no jurisdiction to make the order that he made. They submitted that the only proper route for the plaintiff was to have applied for particular discovery under r 24.07 of the English Rules of Court (which was similar to r 29.08 of our Rules). They asserted that such an application would have been refused on its merits because the plaintiff would have been unable to produce the necessary evidence on affidavit to justify the making of an order for particular discovery. The Court of Appeal rejected this ground of appeal. Roch LJ (with whom Leggatt and Aldous JJ agreed) said:

"The first issue is whether the Deputy Judge was right that he had power to make an order in the form in which he did. I would begin by observing that an application for discovery of particular documents under Ord.24,r.7 would not have been effective to produce the medical records of Mr Hughes or the second defendant in this case. Those documents did not appear in the defendants' list of documents and therefore it could be assumed by those acting for the plaintiff that those documents have never been in the view of the defendants, in their possession, custody or power. Clearly medical records kept by doctors or hospitals would not be in the possession or custody of the patient. The notes to the current Supreme Court Practice (in volume 1 page 424) define documents that are or have been in a party's power in this way:

'... these include all documents which, though they are not in his possession or custody, he has a right to obtain from the person who has them - eg. Where he is the owner and has not parted with the right to possession ...

The foregoing rules are subject to the overriding consideration that O.24 is concerned with the physical possession or custody of documents, or the power to obtain such possession or custody. If such documents are not in the physical possession, etc. of a party, he may be ordered to give discovery if he has the right to control them personally or in the capacity in which he is sued ...'.

The position is that a patient now has a statutory right to access to his or her own medical records, provided they are made since 1 November 1991, the commencing date of the Access to Health Records Act 1990, but the patient has no right to demand possession or custody of them.

I would not accept that the proper course for the plaintiff in this case would have been to make an application under that rule."

106 As that extract shows, the Court of Appeal considered that the Access to Health Records Act 1990 did not render a patient's medical records (in the possession of a third party) discoverable by the patient. However, the reason given by the Court of Appeal for that conclusion was that the patient had no right to demand possession or custody of the original documents. Similarly, there is no right under the Victorian Act to demand possession or custody of original medical records. However the weight of authority, at least in Australia, indicates that a mere right[71] to inspect documents (or actual and immediate ability to do so) is generally sufficient to generate an obligation to make discovery of them.[72]

107 On the other hand, I note that Simpson, Bailey and Evans, the learned authors of Discovery and Interrogatories,[73] expressed the view in 1990 that a mere right to inspect and take copies of documents would not constitute power within the meaning of the discovery rules "as it does not enable the party to produce for the inspection of the other party the original documents but only copies obtained in exercise of the right". The learned authors acknowledge a discussion to the contrary in the Law Institute Journal,[74] but, interestingly, they cite Theodore[75] in support of their proposition. The relevant passage in Theodore appears to be the passage quoted above in which Murphy J says that the mere fact that the plaintiff could have called upon the Commissioner under s 61(2) of the Compensation (Commonwealth Government Employees) Act 1971 to provide copies of the Commonwealth's documents did not mean that those documents were at any time in the plaintiff's power.

108 With respect to the learned authors, I do not think that their proposition is supported by what Murphy J said in the passage on which they apparently rely. Moreover, I think it is directly contradicted by what his Honour had said on the previous page, namely:[76]

"The right to have the existence of a document disclosed in the affidavit of documents does not necessarily involve any right to have it produced for inspection. The fact, if it be the fact, that a document cannot now be produced by a party, having left his possession or power, does not mean that, if relevant, it need not be discovered: see Swanston v Lishman (1881) 45 L.T. 360 at p 361 per Jessel M.R."

109 In Nixon v Channel 4 and Others, the Court of Appeal apparently saw no occasion to consider whether there were other reasons why the Access to Health Records Act 1990 (UK) did not put medical records within the "power" of the individual. So it seems that, in the end, Nixon v Channel 4 and Others does little to illuminate the questions before me.

110 In support of its arguments on "power", Norwich cited the very brief decision of Registrar Wallace of the Western Australian District Court in Royal v Alcoa of Australia Limited.[77] Registrar Wallace held that relevant medical records relating to the plaintiff in the possession of a medical centre and a hospital were within the power of the plaintiff by virtue of the Privacy Act 1988 (Cth) and the Guidelines thereunder published by the Office of the Privacy Commissioner. The Privacy Act (in Schedule 3) incorporates the National Privacy Principles. They are similar in format to the Health Privacy Principles set out in the (Victorian) Act. The exceptions and exemptions are similar in content. However, Registrar Wallace did not set any of them out or examine any of them individually in the Court's reasons. The Registrar simply said[78] that "none of [them], on their face, apply in the present case". The Registrar was satisfied that the statutory right to "access", as administered in practice under the Privacy Commissioner's Guidelines, amounted to a right to inspect the documents in one way or another, as the relevant organisation saw fit. Without more, he concluded that the plaintiff had a presently enforceable legal right to obtain inspection of the documents and that, on the authority of Lonrho, the documents were therefore in the plaintiff's power.

111 As is apparent from the above, I take a different view of the requisite approach to the corresponding exceptions and exemptions in the Act.

112 Registrar Wallace apparently found it unnecessary to examine the review or enforcement provisions in the Privacy Act. One reason for this may be that s 98 of the Privacy Act enables any person to apply (directly) to the Federal Magistrates Court or to the Federal Court for an injunction to restrain a contravention of the Act. It has been determined that this avenue of enforcement is free-standing and is not diminished by other provisions in the Act, such as the provisions for complaints to and determinations by the Privacy Commissioner.[79] There is no provision equivalent to s 98 in the (Health Records) Act. Partly for that reason, I have characterised the complaint and enforcement provisions of the (Health Records) Act in a way different from the way in which Registrar Wallace apparently viewed the corresponding provisions of the Privacy Act in Alcoa.

113 Accordingly, nothing in Alcoa persuades me to depart from what I have said above.

114 Psalidis points out that in Chavarria v Rodman,[80] Principal Registrar Gething of the District Court of Western Australia declined to follow Alcoa. However, with respect, I have difficulties with the reasoning in Chavarria as well. The Principal Registrar expressly departed from the approach taken in Alcoa in one respect only. He found that the right to have "access" to a document under the Privacy Act 1988 (Cth) did not amount to a right to obtain a copy or to a right to allow a third party (such as an adversary in litigation) to inspect the original, and concluded that, in consequence, the relevant documents were not in the "power" of the party for discovery purposes. The Principal Registrar apparently considered that this reasoning was in line with Taylor v Santos and Theodore.[81] But, as I have indicated, in my view it was not.

115 The proposition that, for discovery purposes, the Privacy Act probably does not give individuals "power" over documents in the possession of organisations was put forward recently by a Judge of the District Court of Western Australia, Davis DCJ, in Integrated Management Services Pty Ltd v Inches.[82] However Davis DCJ made this comment relying principally on the reasoning in Chavarria, with which, as indicated above, I do not agree.

116 Chavarria and Integrated Management Services may implicitly stand for the proposition that, absent the problem about obtaining copies, the Privacy Act 1988 (Cth) would generally give "power" over documents to individuals for discovery purposes. However, if so, I would simply not be persuaded by that to depart from my analysis of the effect of the Victorian Act (notwithstanding that, under the Victorian Act, copies are available at the election of individuals who are entitled to access).

117 Norwich also relied on a number of Canadian cases.[83] They are all distinguishable in at least one way. Individuals in Canada have a common law right to have access to their medical records.[84] By definition, the right is directly and immediately enforceable in court. Further, there are few exceptions or exemptions. Again, nothing in the Canadian cases persuades me to the contrary of the views I have expressed above about the effect of the Victorian Act.

118 For the reasons I have given, I am not satisfied that any of the documents sought are in Psalidis' power for discovery purposes.

Should the Court direct the plaintiff to make requests under the Act in any event?

119 Norwich submits that, in any event, or in the alternative, I should direct Psalidis to make requests under the Act to each of the specified medical practitioners. In that regard, Norwich relies mainly on Palmdale, C.E. Heath, Linfa and Sabre. It calls in aid r 1.14 and r 34.01. It submits that if any documents of the kind sought exist then their degree of relevance is likely to be so high that it is inevitable that Norwich will gain access to them one way or another before or during the trial. It says that there is at least a real likelihood that the medical records would be released by the medical practitioners to Psalidis on request. It says that requiring Psalidis to take steps under the Act to obtain them now is the most appropriate and efficient approach to take.

121 If Norwich's submissions were sound, it would be a wonder that cases like Lonrho and Taylor v Santos were ever fought. Lord Diplock, Doyle CJ and many others would have been wasting their time in writing about the need to keep discovery obligations within reasonable bounds. In Linfa, Hedigan J would have been wasting his time examining the facts so closely in order to determine whether the documents were within the relevant party's power.

122 Palmdale and C.E. Heath were cases very different from the present. They were commercial cases. Each plaintiff sued for debts calculable by reference to wages paid. In each case, the defendant had not retained its wages records. In order to have any chance of proving its case, the plaintiff needed the production by the defendant of secondary records, such as tax returns. The defendant said it had not retained copies of these, either. In such circumstances, each plaintiff succeeded in persuading Marks J to require the defendant to take steps to obtain the secondary records or copies from the authorities, by making FOI requests if need be. The secondary records were admittedly discoverable. They had been created by the defendants themselves and despatched by them. So, as already mentioned, the issue was production and inspection, not discovery. The defendants were presumably in a better position than the plaintiffs to help the authorities to identify and locate the secondary records. According to Marks J, the defendants had been unduly unco-operative with the plaintiff, if not obstructive, for a long period. The orders were made, in a real sense, as a last resort.

123 Sabre was also very different. It was a passing off/misleading and deceptive conduct case in the Federal Court. The respondent sought an order that the applicant be required to take steps to obtain certain relevant documents from a US corporation with which the applicant had a close business relationship. The order sought was not objected to in principle. Lockhart J held that the Federal Court had power to direct a party to take steps to obtain access to and discover documents which are in the possession, power or control of a third party where there is a real likelihood that the party to the proceeding would be given access to the documents upon request.[85] That power was said to arise from s 23 of the Federal Court of Australia Act 1976, which provides:

"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."

The Supreme Court Act 1986(Vic) contains no direct equivalent of that provision. However, in various cases decided in other Australian jurisdictions since Sabre, courts have discerned a like power in statutory provisions or rules of court similar to rr 1.14 and 34.01 of the (Victorian) Rules.[86] So far, no Victorian case has expressly referred to Sabre. However, I will assume (without deciding) that an equivalent power resides in this Court.

124 Nevertheless, it remains a matter for the discretion of the Court whether the power to make a Sabre order should be exercised. In my opinion, no such order would be appropriate in this case, at least at this stage. In Sabre itself, and in most other cases where a Sabre order has been sought, there has been a real difficulty about using the ordinary processes of party-party discovery, third party discovery or subpoena to obtain the relevant information or documents. A typical example is where the documents are overseas and in the possession of some person or entity not readily amenable to the ordinary processes of the jurisdiction.[87] There are no comparable difficulties in the present case.

125 Norwich submits that the orders and directions it seeks are preferable to leaving it to issue subpoenas or apply for third party discovery.

126 Order 42A of the Rules provides for subpoenas to be issued and responded to in advance of the date set for the trial. However Norwich submits that this procedure is either not available or of doubtful availability or utility before the proceeding has been set down for trial. I need make no comment on that submission, because I am prepared to give weight to Norwich's further submission that an attempt by it to proceed by way of subpoena at this stage might be the subject of a different objection. In Belsart Pty Ltd v Man Po Holdings (Aust) Ltd,[88] Beach J held that a subpoena issued under the then equivalent of Order 42A (r 42.10) was liable to be set aside if it was issued for the purposes of discovery. Beach J said:[89]

"18. The Supreme Court Rules contain an established procedure for obtaining discovery from a non-party. See Rule 32.07. Rule 42.10 is not to be regarded as a substitute for that procedure. Rule 42.10 requires production of documents to the Court for the purposes of the trial of the proceeding. It does not require production of documents to a party.

1. 19. If a party wishes to obtain production of documents by a non-party prior to a date being fixed for the trial of the proceeding, the appropriate procedure for that party to adopt is to make an application to the Court pursuant to Rule 32.07. If such an application is successful the non-party will be required to make discovery to the applicant of any such documents, and in the absence of valid objection the applicant will be entitled to inspection of such documents."

127 Norwich opposed the "solution" of requiring it to apply for third party discovery on four principal grounds - that such an application would be deemed inappropriate if, on proper examination, it were found that the documents were in the power of Psalidis himself; that, in any event, an application for third party discovery was subject to discretionary refusal, whereas party-party discovery was a matter of right; that third party discovery would drag the doctors into this litigation unwillingly and would involve considerable trouble and expense for them; and that Norwich's proposal was simply more efficient.

128 The first ground is met by my finding that the documents are not in Psalidis' power. Of course, as his counsel effectively conceded,[90] Psalidis could not be heard to submit hereafter that third party discovery should be refused on the basis that the documents were in his power all along and therefore could have been obtained on party-party discovery.

129 The second ground is also met by my finding that the documents are not in Psalidis' power. If that finding be correct, Norwich has no right to obtain discovery of the documents from Psalidis. In any event, as rr 29.05 and 29.16 show, there is no such thing any more as an absolute right to party-party discovery in this Court (if there ever was). The whole matter of discovery and inspection of documents is subject to the discretion of the Court.

130 As to the third ground, the prospect of substantial inconvenience to the doctors is speculative and, in any event, I consider that the contest between the parties about the documents in question is eminently suitable to be considered and determined on an application by Norwich under r 32.07 for third party discovery. I note that Norwich itself foreshadowed to Psalidis in correspondence that it might proceed in that way (instead of or in addition to making the application which it did make). It is true that, initially, this Court was cautious in its use of the power to order third party discovery, but it seems to me that the present case might meet all of the guideline conditions referred to in the early cases, such as Keviris Pty Ltd v Capital Building Society,[91] and, in any event, the approach now adopted by this Court is a more flexible one.[92] An application for third party discovery would enable all parties affected, including Psalidis and the doctors, to raise any objections or concerns about the form of any order sought, or about subsequent production or inspection.[93] Such concerns might conceivably arise from s 28(2) of the Evidence Act 1958 which provides:

"(2) No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding or an investigation by a Complaints Investigator under the Accident Compensation Act 1985 any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient."

In Fitzgerald v Munro[94] Beach J said:

"If a medical practitioner who has treated a patient is precluded from divulging in any civil suit action or proceeding information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient without the consent of the patient, it would make a mockery of the section if entries in the patient's medical records containing that information and made by that medical practitioner could be divulged in any civil suit action or proceeding without the consent of the patient."

131 There was some discussion in this application about whether the plaintiff had waived any "privilege" he may have under s 28(2).[95] That issue would also be more suitably canvassed in an application for third party discovery.

132 As to Norwich's fourth ground, efficiency, I take leave to doubt whether its proposal would be more efficient. As just mentioned, it may well be desirable in any event to give the medical practitioners an opportunity to be fully apprised of the context in which any request (by anyone) is made to them for access to Psalidis's medical records. Further, I note that the suggestion that requests should be made to the six medical practitioners not associated with the Hill Street Medical Clinic was not made by Norwich in correspondence nor until the day on which the summons was issued (being a mere two days before the hearing before Associate Justice Evans).

133 Moreover, in my view, any considerations of efficiency are outweighed by considerations arising from the apparent policy of the Act. As appears, I think, from my examination of the Act above, its tenor is quite opposed to the suggestion that it makes the private medical records of individuals more easily accessible by third parties, whether or not in the context of litigation. In this regard I refer especially to s 1 (purpose), s 6 (objects), s 7 (relationship to other laws), s 8 (nature of rights created), s 18 (What is an interference with privacy?), s 19 (Health Privacy Principles) and Schedule 1 generally. I note also, by way of indirect indication, HPP6.1(c) which exempts from the right of access "information [that] relates to existing legal proceedings between the organisation and the individual [where] the information would not be accessible by the process of discovery in those proceedings ... ".

134 In summary, even if I had been satisfied that the documents were within Psalidis' "power", I might have been persuaded by the matters to which I have just referred to exercise my discretion against allowing Norwich's present applications, leaving Norwich to make such applications for third party discovery as it may be advised. As it happens, that position does not arise. I am certainly not persuaded that, notwithstanding my conclusion that the documents are not within Psalidis' power, I should exercise my discretion in Norwich's favour.

135 The appeal will be dismissed. I will hear counsel on the question of costs.

[2] See para 5 of Norwich's written submissions and pp 18-23 of the transcript (especially at pp 22-23).

[3] Being the documents on which the defendant apparently bases its abovementioned allegations as to a consultation with Dr Chew on 23 January 2007, a diagnosis by Melbourne Pathology of a malignant melanoma on 24 January 2007 and the removal of the melanoma by Dr Houseman on 14 February 2007).

[4] [1973] VicRp 19; [1973] VR 215.

[5] [1993] FCA 557; (1993) 124 ALR 400.

[6] The nature of the obligation to "make discovery of documents" is explained in r 1.13(1): see Bailey and Arthur, Civil Procedure Victoria, [29.01.15].

[7] [1987] VicRp 8; [1987] VR 113.

[8] Unreported, Supreme Court of Victoria, Marks J, 28 November 1989.

[9] [1995] VicRp 40; [1995] 1 VR 643.

[10] [1993] FCA 557; (1993) 46 FCR 428.

[12] It cites the following authorities: Vic: Roux v Australian Broadcasting Corporation [1992] VicRp 87; [1992] 2 VR 577 at 589; Hooker v McCain Australia Pty Ltd (SC(Vic), O'Bryan J, 18 December 1981, unreported); Linfa Pty Ltd v Citibank Ltd [1995] VicRp 40; [1995] 1 VR 643 at 646, 647; SA: Douglas-Hill v Parke Davis Pty Ltd (1990) 54 SASR 346; White v South Australia [2007] SASC 75 at [92]; FED: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2) [2006] FCA 1001 at [53].

[13] [1980] 1 WLR 627 at 635.

[15] [1987] VicRp 8; [1987] VR 113 at 116.

[16] Unreported, Supreme Court of Victoria, Marks J, 28 November 1989. Marks J expressly acknowledged that the issue in C. E. Heath was inspection, as distinct from prior discovery: see at 6, 10. Similarly, in Lewis v Powell [1897] 1 Ch 678, another case relied on by Norwich, the issue was production, not discovery.

[17] [1993] FCA 557; (1993) 46 FCR 428.

[18] [1995] VicRp 40; [1995] 1 VR 643 at 647, lines 43-45.

[21] (1998) 71 SASR 434 at 448-449.

[25] (1998) 71 SASR 434.

[26] [1995] VicRp 40; [1995] 1 VR 643 at 647, lines 4-11.

[27] [1988] VicRp 38; [1988] VR 272.

[28] [2009] NSWSC 921 (4 September 2009) at [360]-[365].

[30] In any event, as mentioned above, any such suggestion by Marks J should be regarded as confined to questions of production and inspection, as distinct from discovery.

[34] Sch. 1 HPP 6: See section 34(3) for access to health information, only part of which is claimed to fall within HPP 6.1 or 6.2.

[35] Sch. 1 HPP 6.1(c): See also section 96.

[38] See also s 53 as to stale complaints.

[40] Or even in the absence of a complaint or ruling.

[41] Subject to a provision for extension to 60 days: s 76(2).

[43] Putting aside the possibility that, in future, exemptions under the definitions of "health service" and "health information" might be prescribed.

[44] As mentioned above, opinions of that kind are not subject to challenge on the merits: s 42(4).

[47] See ss 21(2) and 25(1) of the Act and HPP 6.1 and 6.10; Vines v Djordjevich [1955] HCA 19; (1955) 91 CLR 512 at 519-520; Chugg v Pacific Dunlop [1990] HCA 41; (1990) 170 CLR 249 at 257.

[48] Except those listed in paragraphs 6.1(k) and (l).

[49] Unreported, Supreme Court of Victoria Ashley J, 4 November 1991, BC 9100595 at 3-4.

[50] See Cross on Evidence Service, Australian edition, [7060]-[7075] and cases there cited; Phipson on Evidence, 13th edition, 1982 at 4-05 and cases there cited.

[51] [1988] VicRp 38; [1988] VR 272.

[59] See, for example, Rogers v Hougland, unreported, Supreme Court of Tasmania, Zeeman J, 12 July 1991 BC 9100094; Roux v Australian Broadcasting Corporation [1992] VicRp 87; [1992] 2 VR 577 at 589 per Byrne J; Linfa Pty Ltd v Citibank Ltd [1995] VicRp 40; [1995] 1 VR 643 at 647 per Hedigan J. Theodore was cited twice on other points by Brennan CJ in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 509 and 510. See also the references to Theodore and to Rogers v Hougland in Mathews and Malek, Disclosure, 3rd edition, 2007 at 5.54; cf 5.52.

[61] [1983] FCA 242; (1983) 50 ALR 551.

[62] The reference was to the Freedom of Information Act 1982 (Cth).

[63] Supra. Unreported, Marks J, 28 November 1989.

[65] Tomasevic v Travaglini [2007] VSC 337; [2007] 17 VR 100 (Bell J) at 105 [21]-[24] and cases there cited; Engbretson v Bartlett [2007] VSC 163 (Bell J) at [63].

[67] Such as is involved in award-making in the course of compulsory industrial arbitration.

[68] [1988] VicRp 38; [1988] VR 272 at 279.

[69] Lonrho Ltd v Shell Petroleum (Court of Appeal) [1980] 1 QB 358 at 376 per Shaw LJ; see also at 374 per Lord Denning MR. See also Re Lombard Shipping and Forwarding Ltd [1993] BCLC 238 (Chancery Division, Vinelott J) at 243-245.

[70] [1997] EWCA Civ 1117 (27 February 1997), unreported.

[71] If it is a presently enforceable legal right.

[72] See Taylor v Santos (1998) 71 SASR 434 at 438 per Doyle CJ; B v B [1978] Fam 181 at 186; In the Marriage of Barro [1983] FamCA 14; (1983) 47 ALR 338 at 345-346; Lonrho Ltd v Shell Petroleum Ltd [1980] 1 WLR 627 at 635; Mathews and Malek, Disclosure, 3rd edition, 2007 at 5.46. The UK Rules of Court referred to in Nixon v Channel 4 have since been amended to impose a test of "control" defined to include a party having a right "to inspect or take copies" of documents: CPR, r 31.8(2)(c). See Mathews and Malek, op. cit [5.47].

[74] (1986) 60 Law Inst. J 554.

[75] [1988] VicRp 38; [1988] VR 272 at 276.

[76] [1988] VicRp 38; [1988] VR 272 at 275.

[77] [2005] WADC 170 (26 August 2005).

[79] Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance [2004] FCA 637; (2004) 134 IR 19 (Gyles J) at [35]-[40].

[80] [2006] WADC 42, BC200640148.

[82] [2009] WADC 41 at [15].

[83] McInerney v MacDonald (1992) 93 DLR (4th) 415; Elguindy v Prince [2000] O.J. No 28; Demiroglu v Kwartey [1999] O.J. No 3117 and [1998] O.J. No 4427 and Price v Laboussiere [1985] A.J. No 1067.

[84] McInerney. In Breen v Williams (1996) 186 CLR 71 the High Court of Australia refused to follow McInerney.

[85] (1993) 124 ALR 440 at 404.

[86] See, eg, Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259 (Le Miere J) at [31]-[32]; Sogelease Australia Ltd v Griffin [2003] NSWSC 178 (Palmer J) at [37]; Bova v Avati [2009] NSWSC 921 (Ward J) at [363]-[364], [370]-[373].

[87] That was the situation in Sabre itself. See also Bova v Avati [2009] NSWSC 921 at [370]- [374]; cf SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) [2006] FCA 931; (2006) 155 FCR 150.

[88] [1998] VSC 46.

[90] Transcript 127-128. Strictly speaking, the concession was made in relation to a putative dispute over a subpoena under Order 42A rather than third party discovery.

[91] Unreported, Kaye J, 9 February 1988, BC8800814. See Bailey and Arthur, Civil Procedure Victorian Service, [32.07.30].

[93] See Hore-Lacy v David Syme and Co Ltd; unreported, SCV, Beach J, 5 September 1996, BC9604308 at 6.

[94] [1998] VSC 30 at [19].

[95] See, eg, Ginnity v Prefsure Life Limited [2007] VSC 284 (Hollingworth J); Elliott v Tippett [2008] VSC 175 (Judd J).