The plaintiff by way of summons filed on 13 August 2018 seeks orders as follows:
1. Pursuant to r 5.3(1) and (3) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), Dr Stanley Tang give discovery documents falling within the categories listed in the attached schedule.
2. Such further or other order as this Court deems fit.
The schedule of documents sought from Dr Tang are:
1. Attendance and consultation notes;
2. Observation charts;
3. Records of comorbidities and medications;
4. Medication prescriptions;
5. Referrals for imaging, pathology or medical/psychological treatment;
6. Hospital admission and discharge summaries;
7. Medical, imaging, pathology, toxicity reports and/or other documents referred to or relating to the certificate of cause of death;
8. Records of correspondence with police and/or the coroner;
9. Records of correspondence with the Department of Forensic Medicine.
The application is supported by:
1. The affidavit of Conrad Peter Curry, sworn on 13 August 2018;
2. An affidavit of service which is dated 17 August 2018;
3. A letter from Avant Law dated 4 September 2018, setting out the position of Dr Tang.
I set out the contents of the letter from the solicitors acting for Dr Tang, which is Exhibit D in these proceedings:
"Dear colleagues,
Dr Stanley Tang and Terence Forbes,
We refer to the summons seeking preliminary discovery from Dr Stanley Tang, general practitioner, and the affidavit of Conrad Peter Curry sworn on 13 August 2018.
Dr Tang is a medical practitioner and, as such, has a duty of confidentiality to the deceased, Donna Lee Forbes. There does not appear to us to be a provision of the Health Records And Information Privacy Act which allows Dr Tang to disclose the documents sought to a third party.
We are instructed the defendant will submit to an order for discovery if the Court is satisfied that an order ought to be made pursuant to r 5.3 Uniform Civil Procedure Rules.
The defendant is able to provide the documents he holds which are responsive to the schedule within seven days of an order being made.
Yours faithfully,
Avant Law Pty Ltd"
Rule 5.3 UCPR provides:
"5.3 Discovery of documents from prospective defendant
(1) If it appears to the court that:
(a) the applicant may be entitled to make a claim for relief from the court against a person ("the prospective defendant") but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and
(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and
(c) inspection of such a document would assist the applicant to make the decision concerned,
the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.
(2) An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation.
(3) Unless the court orders otherwise, an application for an order under this rule:
(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and
(b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.
(4) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to decide whether or not to claim or cross-claim against a person who is not a party to the proceedings."
This brings me to a consideration of the facts relevant to these proceedings. The affidavit of Mr Conrad Peter Curry, the solicitor for the prospective plaintiff, Terence Forbes, sets out the background to this application and provides a series of documents, namely the following:
1. Certified copy of certificate of marriage performed on 19 March 1988, certified copy of which is dated 12 December 2013;
2. Death certificate in relation to Donna Lee Jane Forbes ("the deceased");
3. Letter from the Coroner's Court of New South Wales dated 17 October 2017;
4. Statement of Senior Constable Christian Drumminson dated 31 August 2017;
5. New South Wales Ambulance report dated 30 August 2017;
6. Report of death to the coroner dated 31 August 2017;
7. Autopsy report of Dr Brian Beer, Forensic and Analytical Scientific Service, dated 9 October 2017;
8. MINS prescribing information - endone.
The circumstances leading to this application may briefly be described as follows. The prospective plaintiff, Terence Forbes, was married to the deceased on 19 March 1988 and was in a relationship with her until her death. Dr Tang had been treating the deceased for several years prior to her death. The deceased was treated for the serious disease of Lupus, and additionally, suffered from an addiction to prescription medications such as endone. Dr Tang prescribed endone and other opioid analgesics to the deceased at a time when Mr Curry asserts he was aware that the deceased suffered from an addiction to, or was prone to abuse such medications and had on previous occasions visited other doctors for the purpose of obtaining prescriptions for additional opioid analgesics. In addition, he was or should have been aware that the deceased was prone to lie about the prescription of drug by these other practitioners as well as the extent of her usage of the drug.
Dr Tang put in place a regime of prescribing smaller quantities of the drug more frequently to prevent her from building up dangerous quantities of the drug which included prescriptions for the daily collection of the drug. However, on a date shortly before the deceased's death, Dr Tang prescribed a large quantity of the drug contrary to this regime.
After the deceased's death on 30 August 2017, Senior Constable Drumminson attended upon the deceased and noted the following in conversation with Dr Tang:
1. Dr Tang admitted to having prescribed more than the usual amount of the drug because the deceased informed him that she was going to Sydney to visit her brother for an extended period and required an amount to cover this period.
2. This consultation occurred with the deceased on 29 August 2017, the day before the death.
3. The drug in question appears to have been an opioid, most probably endone.
Senior Constable Christian Drumminson's statement also includes the following observations of the scene when he attended for the purposes of dealing with the consequences of the death of the deceased:
1. There appeared to be a number of prescription drugs open near the position of the body of the deceased.
2. There were four boxes of endone tables containing 20 tablets in blister packets.
3. 25 of the tablets in the blister packet were open.
4. One blister packet of ten was missing.
5. One box of Oxazepam tablets containing 100 tablets with 26 opened and one blister pack missing were observed; and
6. One box of Budesonide capsules containing 90 capsules had 44 capsules opened with some unaccounted for.
The known prescriptions for the deceased according to the affidavit of Mr Curry as at 30 August 2017 were:
1. Endone tablets, 5 milligrams, two tablets three times per day;
2. Oxazepam tablets, 30 milligrams, two tablets twice a day;
3. Budesonide, 3 milligrams, one capsule three times a day.
The cause of death according to Dr Beer's report dated 9 October 2017 was mixed drug toxicity, and the direct cause of death is identified in the coroner's report as "Mixed drug toxicity".
I note that in his statement, Senior Constable Drumminson has also set out the information he obtained from the prospective plaintiff, which included that the deceased was medicated for her Lupus by Dr Tang and would often hide endone to conceal her consumption, presumably from Mr Forbes. She had accidentally overdosed on prior occasions and it was difficult for Mr Forbes to work out just how many drugs she had taken. It was after the prior accidental overdose that it was agreed with Dr Tang that he would monitor the prescriptions and therefore the consumption of the prescribed drugs.
The above history has caused Mr Curry to form the view that the plaintiff may have a cause of action in negligence against Dr Tang under the Civil Liability Act 2002 (NSW), or some other civil claim, and that in those circumstances, accesses to the documents set out in the schedule would assist in determining whether there is a viable cause of action. However, Dr Tang has refused to provide such information by reason of the asserted duty of confidentiality he has to the deceased as is set out in Exhibit D.
The first issue is the making of reasonable enquiries. It is clear that reasonable enquiries have been made of Dr Tang and the result in question has been the refusal to provide the information. The deceased died intestate and did not have sufficient assets to warrant any application for letters of administration, which means that her rights vest in the New South Wales Trustee & Guardian upon death until the grant is made.
However, the question of any cause of action being brought effectively has nothing to do with the cause of action taken by the deceased in that it is not necessary for the New South Wales Trustee and Guardian to be appointed, in that there can be a litigation guardian appointed for the purpose of the commencement of any proceedings in relation to the deceased's rights, and there may also be a separate cause of action by Mr Forbes.
As to whether there are provisions under the Health Records and Information Privacy Act 2002 (NSW), I note that it is not uncommon where the medical records in question belong to a hospital for applications to be made to the NCAT. That is not the case here as Dr Tang is a private practitioner.
Section 13 of the Health Records and Information Privacy Act 2002 (NSW) provides:
"13 Courts, tribunals and Royal Commissions not affected
(1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions.
(2) Nothing in this Act affects the manner in which a Royal Commission, or any Special Commission of Inquiry, exercises the Commission's functions.
(3) In this section, "judicial functions of a court or tribunal" means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes:
(a) in relation to a justice--such of the functions of the justice as relate to the conduct of committal proceedings, and
(b) in relation to a coroner--such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009."
The requirement for reasonable enquiries to have been made has been said to be impressionistic, but requires regard to objective considerations rather than merely the subjective of the applicant (St George Bank Limited v Rabo Australia Limited (2004) 211 ALR 147). I am satisfied from the substance of the enquiries made by Mr Curry that he has exhausted his efforts to obtain the records and notes from Dr Tang and requires an order for the provision of the documents to be made by the Court. In particular, I note that even if it were possible to obtain these documents under freedom of information legislation, that would not, of itself, make it unreasonable to claim an alternative remedy under rr 5.2 and 5.3 UCPR, for the reasons set out in Roads & Traffic Authority of NSW v Australian National Car Parks Pty Limited (2007) 47 MVR 502; [2007] NSWCA 114. I am additionally satisfied that the documents are sought for the purpose of commencing proceedings, and that there is a strong desirability or necessity for the orders to be made.
Mr McMahon, in his helpful written submissions, draws my attention to the discussion of the key principles in such applications set out by McColl JA in Hatfield v TCN Channel 9 Pty Limited (2010) 77 NSWLR 506 at [46]-[52] as follows:
"[46] It is convenient to set out the key principles relevant to an application for preliminary discovery. To a large part these are taken from the primary judge's exposition of the jurisprudence in this area which was accepted by all parties. Some of the principles are drawn from case law developed in relation to Federal Court Rules, O 15A, r 6. There are textual differences between the two provisions. No party suggested anything turned on those differences for the purposes of this case.
[47] First, "[i]n order for it to 'appear' to the court that the applicant 'may be entitled' to make a claim for relief, it is not necessary for the applicant to show a prima facie or pleadable case": Morton v Nylex (at [25]).
[48] Secondly, while "the mere assertion of a case is insufficient … [i]t will be sufficient if there is reasonable cause to believe that the applicant may have a right of action against the respondent resting on some recognised legal ground": Morton v Nylex (at [25]).
[49] Thirdly, "belief requires more than mere assertion and more than suspicion or conjecture. [It] is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action": St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 (at 26) per Hely J, referring in turn to John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 (at [13], [14], [17] and [73]) per Emmett J. The use of the word "may" indicates the court does not have to reach "a firm view that there is a right to relief": Telstra Corp Ltd v Minister for Broadband, Communications and the Digital Economy [2008] FCAFC 7; (2008) 166 FCR 64 (at [58]).
[50] Fourthly, the requirement that the matters set out in UCPR 5.3 "appear[s]" to the court to establish an entitlement to an order under the rule may be wider than the requirement in the Federal Court O 15A r 6 that there "is reasonable cause to believe": see Panasonic Australia Pty Ltd v Ngage Pty Ltd [2006] NSWSC 399 ; (2006) 69 IPR 595 (at [22]) per Young CJ in Eq; Papaconstuntinos v Holmes à Court [2006] NSWSC 945 (at [17] per Simpson J; Hornsby Shire Council v Valuer General of NSW [2008] NSWSC 1179 (at [33]) per Adams J. Nevertheless Hely J's statement in St George Bank Ltd (at 26) remains apposite, namely that "whilst uncertainty as to only one element of a cause of action might be compatible with the 'reasonable cause to believe' required by subpara (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe".
[51] Fifthly, "the question posed by [UCPR 5.3(1)(a)] … is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent [but] … whether the applicant has sufficient information to make a decision whether to commence proceedings in the court. Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences": St George Bank Ltd (at 26) (emphasis in original); see also Morton v Nylex (at [33]). Thus application of the rule will not be precluded by the fact that the applicant already has available evidence establishing a prima facie case for the granting of relief, as there might be matters of defence which could defeat a prima facie case: Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 1500 (at [41]) per Lindgren J; referred to with approval by the Full Federal Court (French, Weinberg and Greenwood JJ) in Telstra Corp Ltd (at [60]).
[52] Sixthly, as Hely J said in St George Bank Ltd (at 26), "the Rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the court, exercised in the particular circumstances of each case"."
I also note the provisions of r 21.8 UCPR concerning person injury claims in relation to discovery generally.
Taking all of the above information into account, I am satisfied that Mr Forbes may be able to bring a claim for damages arising from the death of the deceased founded upon the circumstances surrounding the administering of medication, and in particular, endone, to the deceased by Dr Tang and his clinical care generally. I am satisfied that any action is more than a mere possibility by reason of the potential of there being a breach of duty of care owed to the deceased. While the particulars of breach remain unclear and the nature of the cause of action will depend upon the results of analysis of the documents produced, I am satisfied that the production of those documents is essential to the bringing of any claim under the Civil Liability Act 2002 (NSW) or other legislation, and that there is no other provision by which Mr Forbes can obtain these documents.
Any case brought in relation to these claims will require the provision of expert opinion and clearly this cannot be obtained unless the documents in question are provided. At present, Mr Curry does not have sufficient information to determine whether or not to commence proceedings, and in addition, Mr Curry, as a solicitor of the Supreme Court of New South Wales, must be satisfied that there is sufficient prospects of success to commence such proceedings on his behalf. There can be no doubt that Dr Tang not only has the documents requested, but can provide them at very short notice, given the contents of Exhibit D. I note from Exhibit D that Dr Tang has indicated he will submit to any order of the Court to produce these documents.
I also formally note my finding that I am satisfied that these are proceedings where there are "special reasons" which circumvent the operation of reg 21.8 concerning discovery in personal injury proceedings, by reason of facts set out above in this judgment.
This brings me to the question of future case management of these proceedings and costs. Where a party opposes an application of this nature unsuccessfully, costs orders are not uncommon. In the present case where the party the subject of the application effectively submits to the order of the Court, it is not uncommon for costs orders not to be made. In my view, what I should do is make orders for case management of these proceedings in accordance with the provisions of ss 56-62 Civil Procedure Act 2005 (NSW) designed to ensure the just, quick and cheap disposal of these proceedings, and that would include a provisional order for costs which can be visited at some later date in the course of further proceedings, particularly if the statement of claim is filed in the same file, and the proceedings case managed on the basis that the proceedings will go forward in proceedings linked to the summons.
If however the production of documents results in a decision not to proceed with the action, that means that the issue of costs can be determined on a different basis, which may expose Mr Forbes to some cost liability in the future, but the overall benefits of efficient case management require consideration of the entitlements of all the parties, including prospective parties, and that is the consequence which must follow.
[2]
Orders
Accordingly, the orders that I make are as follows:
1. Order 1 of the Summons is granted and pursuant to r 5.3(1) and (3) Uniform Civil Procedure Rules 2005 (NSW), Dr Stanley Tang is to give discovery of the documents set out in the Schedule of Documents to be Discovered, as attached to the Summons filed on 13 August 2018.
2. The documents Dr Tang holds which respond to the Schedule are to be produced within 7 days to the court, and leave to inspect those documents is granted to the plaintiff.
3. Matter stood over to the sittings commencing Monday 26 November 2018 for further directions.
4. Costs to be costs in the cause, but with liberty to the plaintiff and Dr Tang to apply.
5. Grant leave to the plaintiff to file any statement of claim for the commencing of proceedings in 2018/248290.
6. A copy of the judgment to be provided by the Court to Dr Tang, together with a copy of these orders.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 29 October 2018