GB, by his tutor, FB v WESTERN SYDNEY AREA HEALTH SERVICE

Supreme Court of NSW|2009-12-09|Before: Hall J

CITATION : GB, by his tutor, FB v WESTERN SYDNEY AREA HEALTH SERVICE [2010] NSWSC 181

(1) The amended notice of motion filed on 5 June 2009 is dismissed. DECISION : (2) The notice of motion dated 20 August 2009 filed by leave granted on 14 April 2009 by or on behalf of AB is, subject to (3) below, dismissed. (3) I direct the legal representatives on behalf of AB to produce short minutes of order to give effect to the procedure to be followed on the issue of confidential communications. (4) Liberty to any party to apply in relation to any matter arising from this judgment.

LEGISLATION CITED : Evidence Act 2005 Evidence Amendment (Confidential Communications) Act 1997

Alister v The Queen (1984) 154 CLR 404 Commissioner for Railways v Small (1938) 38 SR 564 Director-General, Department of Community Services v D [2006] NSWSC 827 National Roads & Motorists Association v Whitlam [2007] NSWCA 81 Portal Software v Bodsworth [2005] NSWSC 1115 Purkess v Crittenden (1965) 114 CLR 164 CASES CITED : Regina v Saleam (1989) 16 NSWLR 14 Seltsan Pty Limited v Ghaleb [2005] NSWCA 208 Trade Practices Commissioner v Arnotts Limited (1989) 21 FCR 306 Waind v Hill & Anor (1978) 1 NSWLR 372 Watts v Rake (1960) 101 CLR 158 White v Tulloch (1995) 127 FLR 105 Regina v Saleam (1989) 16 NSWLR 14

PARTIES : GB, by his tutor, FB v WESTERN SYDNEY AREA HEALTH SERVICE

P: S Norton SC/L Goodchild COUNSEL : D: J Sandford Intervenor: M Fraser

P: Maxwell Berghouse Ives SOLICITORS : D: General Insurance Law Department Intervenor: G L Jankov

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GB, by his tutor, FB & ORS v WESTERN SYDNEY AREA HEALTH SERVICE

JUDGMENT 1 HIS HONOUR: This is an application by way of amended notice of motion filed on 5 June 2009 on behalf of the first plaintiff, GB, to set aside a number of subpoenas issued on behalf of the defendant and which relate to the medical condition and treatment of the first plaintiff's sister who, in this judgment will be identified as AB. 2 A notice of motion dated 20 August 2009 field on behalf of AB as intervenor was heard together with the amended notice of motion. 3 The application is made pursuant to Rule 33.4 of the Uniform Civil Procedure Rules 2005 (NSW). 4 It has been argued on behalf of the first plaintiff that the subpoenas requiring production of the abovementioned documentation should be set aside on the basis that such documents are irrelevant to any issue in the first plaintiff's case and, accordingly, the subpoenas constitute an abuse of process.

The history of the proceedings 5 The substantive proceedings were commenced in the Professional Negligence List by Statement of Claim filed on 31 October 2002. The Statement of Claim has since been amended on a number of occasions. 6 The first plaintiff is presently aged 10 years of age. He brings the proceedings by his father, as tutor, against Western Sydney Area Health Service. 7 The second and third plaintiffs are the parents of the first plaintiff. They allege in the proceedings that they have suffered nervous shock and psychiatric injury as a result of the alleged negligence of the servants and agents of the defendant. 8 The Second Further Amended Statement of Claim was filed on 19 December 2007. The case pleaded on behalf of the first plaintiff is that, when he was almost aged one year, he suffered from a number of symptoms including a loss of co-ordination and that on 28 February 2001, he was taken by his parents to the Royal Alexandria Hospital for Children, referred to as the "Westmead Children's Hospital", which is and was at the relevant times under the control of the defendant. 9 Following the first plaintiff's initial examination, he was sent home. By reason of continued symptoms, he was taken back to the hospital. The case on his behalf is that on 28 February 2001 and 2 March 2001, he was suffering from a condition known as rhabdomyolysis. 10 It is the first plaintiff's case that those treating him at the hospital were in breach of their respective duties of care and that on 6 March 2001 and 23 March 2001, it is claimed that he suffered respiratory and cardiac arrest whilst an in-patient and consequentially suffered brain damage and consequential disabilities. 11 In the particulars of negligence set out in the Second Further Amended Statement of Claim (paragraph [15]), it is alleged that the defendant, by its servants or agents, failed to admit the first plaintiff into hospital for the purpose of checking whether he "had an underlying metabolic condition of rhabdomyolysis triggered by viral illness or alternatively of genetic onset". 12 The particulars further allege, inter alia, the following matters:-

• A failure to "ascertain that the first plaintiff had a raised creatine kinase level" .

• A failure to test the first plaintiff's liver enzymes and urea.

• A failure to diagnose that the first plaintiff was suffering from a state of metabolic acidosis.

• A failure to closely monitor the first plaintiff's potassium level and adjust doses of potassium chloride as necessary. 13 The defendant served subpoenas upon the Westmead Children's Hospital and the Sydney Children's Hospital in respect to AB's medical records on 10 November 2008. Copies of the subpoenas were served on the solicitor of the plaintiff on 11 November 2008. The terms of these subpoenas have been replicated in a schedule attached to this judgment. 14 The subpoenaed documents were produced and access took place by the defendant. 15 The hospital records produced by Westmead Children's Hospital and the Sydney Children's Hospital pursuant to subpoenas issued on 10 November 2008 indicated that the following people/institutions had provided treatment to AB:-

(6) The Royal Institute for Deaf and Blind Children

(8) The Spastic Centre of NSW 16 The respondents therefore issued a further eight subpoenas on 13 January 2009 to these people/institutes requesting information and medical records regarding AB and GB. The terms of these subpoenas have been replicated in a schedule attached to this judgment. 17 The defendant has not yet viewed the material produced pursuant to these subpoenas.

(1) Evidence from the first plaintiff and intervenor 18 An affidavit in support of the orders sought in the notice of motion were sworn by Angela Napoli on 6 February 2009. Ms Napoli relied upon three grounds in support of the orders sought:-

(1) That there was no legitimate forensic basis upon the material sought in the subpoenas could be sought.

(2) That the material sought in the subpoenas was irrelevant to the proceedings.

(3) That the defendant was engaged in a "fishing" expedition in seeking such documents. 19 Mr Peter Michael Ives, solicitor for the first plaintiff swore an affidavit on 23 April 2009. The affidavit annexed a letter requesting particular on behalf of the defendant dated 4 September 2008 and a reply from the first plaintiff's solicitors dated 14 November 2008, the correspondence respectively being marked as "A" and "B" to the affidavit. 20 In the letter of 4 September 2008, particulars were sought in respect of AB, amongst other matters, as to her current medical condition and diagnosis and the name and location of each hospital at which AB had received treatment and particulars as to treating doctors. 21 The reply to that letter was that the request made was "irrelevant and will not be answered". 22 On behalf of AB as intervenor, an affidavit was sworn by Gordon Jankov, solicitor, on 20 August 2009 and filed in the proceedings. It stated that AB was born on 23 February 2004 and that inspection had been carried out on "subpoena packet numbers 24 to 34 inclusive" and that all documents within those packets related to AB. Mr Jankov contended (paragraph 16) that:- "It is not in [AB's] interest that confidential medical information about her is made available and is used as contemplated by the Defendant. That information is private to her. If the Defendant were to use such information in the manner suggested, [AB] may become involved in the litigation and may become the subject of otherwise unnecessary investigations and scrutiny." 23 AB's mother and father respectively swore affidavits on 4 May 2009 and 30 April 2009. The first plaintiff's mother also gave evidence on 9 December 2009. I will refer to her evidence below. 24 In her affidavit sworn on 4 May 2009, GB's mother detailed occasions when she and her husband took her son to medical appointments arranged by the defendant. For the purposes of the proceedings, she was referred as to MB. 25 MB stated that she is the main carer for both of her children. She stated that she was aware of the fact that the defendant had issued subpoenas seeking medical records in relation to her daughter for the purposes of the present proceedings. 26 She indicated her concern and, in effect, her displeasure at the defendant's attempts to compare her two children when, she stated, they were individuals with two different problems. She also stated that sometimes her knowledge that medical records of the practitioner looking after her daughter may be subpoenaed affects the way she responded to questions raised by the doctor. When asked in what way, she replied "Just back to, like, they are just trying to compare, like, the two children together when they are just totally different". 27 MB was then asked:- "Q. Does it make you more careful about how you answer those questions? A. Yes, it does. Q. And how much of a history you give about your daughter? A. Yes, it does." 28 The first plaintiff's father, FB, is the third plaintiff to the proceedings. In his affidavit it he provided an account of attendances on medical practitioners retained by the defendant including, in particular, Dr Wise, Dr Dale and Dr Tuichenne. (2) Evidence for the defendant/respondent 29 The defendant relied upon two affidavits sworn by Andrew Lionel Bridge-Webb solicitor on 20 March 2001 and 26 November 2009. 30 In the first-mentioned affidavit, Mr Bridge-Webb referred to a report of Roslyn Fenton, occupational therapist, dated 26 November 2007, a copy of which was annexed to the affidavit. In particular, reliance was placed upon a statement in the report (p.9) that AB had "a congenital abnormality with no specific diagnosis", resulting in a significant developmental delay. 31 The contention for the defendant was that, even if there were no suggestion of a common underlying condition in the first plaintiff and his sister, AB, details of AB's condition and treatment were still relevant in determining whether there was or will be "an overlap in terms of claims for items such as care, equipment and housing". 32 In his affidavit sworn 26 November 2009, Mr Bridge-Webb attached copies of reports that had been received by him. These included two medical reports, the first from Dr Simon Erikson, paediatrician at Intensive Care Unit ("ICU") at Princess Margaret Hospital for Children, Western Australia, dated 14 May 2004 and the second from Professor Jillian Turner, geneticist, dated 21 November 2008 and, as well, a copy of Ms Fenton's abovementioned report. 33 Professor Turner examined the first plaintiff, GB, on 18 August 2008. In October 2008, Mr Bridge-Webb sent Professor Turner copies of medical records relating to AB "produced by the Children's Hospital Westmead and Sydney Children's Hospital". 34 Mr Bridge-Webb issued subpoenas as abovementioned to a number of doctors and institutions returnable on 30 January 2009 to produce documents relating to AB. The first plaintiff's solicitor objected to access being granted to "packets 26 - 32". Accordingly, no inspection has been made to date of those packets.

Report of Dr Erikson dated 14 May 2004 35 As discussed below, it is not the function of the Court on applications for the setting aside of subpoenas to make concluded findings on medical issues. The medical evidence is necessary by way of information and opinion so that medical issues and subjacent matters may be identified. 36 Dr Erikson noted that the first plaintiff presented to the Emergency Department of Westmead Children's Hospital on 28 February 2001 with "concerning but non-specific symptoms". 37 According to Dr Erikson, the next presentation was "well documented" (on 2 March 2001) on which occasion GB was sent for investigations and these were appropriately ordered. The neurology team was also consulted. Dr Erikson observed that the medical team obviously suspected a metabolic disorder. 38 On review by Dr Chong on 3 March 2001, it was noted that GB's creatine kinase ("CK") was elevated at 6352 units/litre. Dr Erikson noted that the normal value is less than 200 units/litre. Other abnormal tests revealed raised liver enzymes and slightly raised urea. 39 Dr Erikson stated that the rapid rise in CK over three days from 6,352 units/litre to 119,000 units/litre indicated a significant rhabdomyolysis. 40 He also observed that CK is a muscle enzyme which is responsible for incorporating creatine into muscle as creatine phosphate. Creatine phosphate is stored in the muscle for release as an energy source, a reaction also requiring CK. 41 A raised CK indicates release of CK from the muscle and occurs with muscle damage/breakdown or rhabdomyolysis. It was noted in the report that even small insults to muscle can cause release of CK into the blood stream. 42 In general terms, the condition of rhabdomyolysis involves the rapid breakdown of skeletal muscle due to an injury to muscle tissue. Muscle damage may be due to any one of a number of causes. The destruction of the muscle leads to the release of the breakdown products of damaged muscle cells into the bloodstream. 43 There are, as Dr Erikson noted, many causes of muscle breakdown or damage and that rhabdomyolysis may occur in a number of clinical settings. Dr Erikson said that (at p.3):- "The most likely cause here is that an underlying metabolic abnormality has resulted in the breakdown of muscle. This is a well-known presentation of severe metabolic diseases and trigger for muscle breakdown is usually another insult such as a viral illness, fasting etc." 44 Dr Erikson concluded that there was no doubt that significant breakdown of muscle was occurring. It was, he said, still difficult to be certain as to the underlying cause of the rhabdomyolysis. He stated that, on balance, the likely cause of rhabdomyolysis is "an underlying metabolic condition with rhabdomyolysis triggered for a viral illness and exacerbated by fasting/ decreased fluid intake" (at p.3). 45 In relation to the standard of care up to the point of respiratory arrest on the ward on 6 March 2001, Dr Erikson made a number of observations (at pp.4 to 5). He stated that, given that GB had a raised CK on initial presentation, he considered that surveillance up until his arrest was inadequate. He considered that his CK and electrolytes, in particular, should have been repeated earlier than three days later. When it was repeated on 5 March 2001, there had been an increase to 119,000 units/litre. He said this should have been seen as a major concern and prompted repeat testing of electrolytes and renal function. 46 Dr Erikson then commented upon the approach taken in the Anaesthetic Department prior to the first plaintiff's MRI and the appropriate decisions made in that respect. 47 In the period between the MRI suite and the subsequent arrest, Dr Erikson expressed an opinion that the management was inadequate in that period. He stated that the first plaintiff should have been reviewed on return to the Hunter Baillie Ward at 11.30 am. In the Post-Anaesthetic Care Unit (PACU), the first plaintiff's urine was noted to be dark in colour which was suggestive of rhabdomyolysis and myoglobinuria. On his return to the ward, he was noted as being febrile, tachycardiac and tachypnoeic. 48 Whilst Dr Erikson stated it was difficult to know, on balance there appeared to have been an individual or system error responsible for a lack of adequate hand over. 49 In relation to the further period, that is, GB's management once arrest was called and subsequent PACU management was put in place, such was appropriate. He noted that GB suffered a cardiac arrest (bradycardia) shortly after admission and initial management in ICU. 50 Dr Erikson noted that rhabdomyolysis, resulting in raised CK may also result in hyperkalaemia, which may cause cardiac arrest. 51 Dr Erikson concluded that it was likely that GB had a metabolic disorder. While the neurological outcome for such conditions is often poor, GB's severe neurological disability is likely to have been compounded by the episode of respiratory arrest and severe hypoglycemia on 6 March 2001 and subsequent cardiac arrest on 23 March 2001. He confirmed that, in his opinion, there were some deficiencies in his early management prior to his initial arrest. He, however, cautioned that the matter was an extremely complicated one.

Report of Professor Jillian Turner dated 21 November 2008 52 Professor Turner stated that the notes relating to AB had been extremely helpful. They reveal that she definitely had the same metabolic condition as the first plaintiff. 53 She noted that AB had had two episodes similar to her brother (rhabdomyolysis), the first one in July 2005 when she was 18 months of age when her CK was recorded at over 100,000 units/litre and a second episode in May 2008 again with a CK level in a similar range. 54 Numerous investigations had not resulted in a specific diagnosis in AB's case. A muscle biopsy had not supported the diagnosis of mitochondrial disease. 55 Professor Turner stated that the evidence that both children having had rhabdomyolysis, would exclude a viral cause or the possibility of some "poison" being causal. 56 Professor Turner also noted that there was still no definite genetic diagnosis but in both children there was the initial breakdown of muscle which was a very rare event. She expressed the view that these biochemical changes would be likely to have occurred even if feeding had not been withheld in preparation for the MRI. 57 She considered that, as both children had the same disorder and both were severely handicapped with identical episodes of muscle breakdown, this would exonerate the Children's Hospital from any liability. She stated that, although with GB there was a question about certain delays and whether the period of nil-by-mouth prior to GB's MRI may have been detrimental to him. She considered that the event of cardiac arrest would have occurred regardless. 58 In summary, the sequence of some key events may be briefly recorded as follows:-

(1) On 28 February 2001, GB was referred by the treating general practitioner to the Emergency Department of the Children's Hospital, Westmead. He was discharged on that day.

(2) On 2 March 2001, GB presented at the hospital on referral by his paediatrician. He was admitted to the hospital on that day.

(3) Following admission, GB underwent a cranial CT scan and a lumbar puncture.

(4) On 3 March 2001, GB was reviewed by Dr Chong. It was noted that the CK was elevated at 6,352 units/litre.

(5) On 5 March 2001, the CK was repeated which noted an increase of CK to 11,000 units/litre noted.

(6) On 6 March 2001, a cranial MRI was performed under sedation. Later that day, GB suffered a respiratory arrest following his return from the MRI suite at 11.30 am and was transferred to the ICU where, after review by a medical practitioner at 2.30 pm, he soon after suffered a cardiac arrest. After having had a respiratory arrest, he was transferred to the PICU and intubated at 2.55 pm on 6 March 2001.

(7) From 6 March 2001 until 16 March 2001, GB remained mechanically ventilated in the ICU.

(8) Between 18 and 20 March 1001, GB was re-admitted to ICU.

(9) On 23 March 2001, GB suffered a further cardiac arrest.

Principles relating to the setting aside of subpoenas 59 The power to set aside a subpoena complements a range of procedures designed to ensure that information relevant to the proper determination of the proceedings is available to the parties and the Court: UCPR at [33.4.10]. 60 Part 33.4(1) of the UCPR empowers the Court upon the application of a party or any person having a sufficient interest, to set aside a subpoena in whole or in part, or grant other relief in respect of it. 61 The present application invokes Part 33.4 on the basis of the principles associated with abuse of process. The application also raises an issue concerning "protected confidence" within the meaning of s.126A of the Evidence Act 2005 and the power of the Court under s.126B of that Act to direct that evidence not be adduced if adducing it would disclose a protected confidence.

(1) Principles 62 A person to whom a subpoena is issued may seek to, and have, a subpoena set aside on the grounds that it was improperly issued and an abuse of the power to compel the production of documents in any one of a number of ways: Waind v Hill & Anor (1978) 1 NSWLR 372 at 381. 63 In the case of third parties or "strangers" to the litigation, a court, it has been held, would jealously consider any submission that the documents sought have no conceivable relation to the proceedings, having regard to the invasion of private rights of the stranger which would be occasioned by the operation of the subpoena: Waind (supra) per Moffitt P at 382. 64 In the present case, it has been argued on behalf of GB that the subpoenas issued constitute an abuse of process. An abuse of process may occur where there is no conceivable relevance of the subpoenaed documents to the issues in the proceedings, where the subpoenas are considered to be a fishing expedition or the subpoena oppressive or vexatious in the sense of being seriously and unfairly burdensome to a party to whom it is directed. 65 The principal issue raised on behalf of GB in the present case is that documents relating to the diagnosis, investigations and treatment of AB have not been established as having any relevance to the issues in the proceedings. 66 The contention made in this respect is to be considered, firstly, by having regard to the applicable principles concerning "relevance" and, secondly, by an examination of the factual and medical issues which the defendant argues establishes the relevance of the documents in question. 67 The issue of relevance or of apparent relevance to issues in the proceedings is, of course, to be determined on an application such as the present whether or not any documents sought are admissible in form. In the present case, the application is not one in which the subpoena documents in question are available for the Court to examine in order that the particular subject matter within them to the proceedings can be determined. 68 In those circumstances, the application is to be determined having regard, inter alia, to the affidavit evidence in support of the application to which I have earlier referred including the medical reports attached to the affidavits. On that basis, the question is whether the documents that have been sought can be said to have an apparent relevance to the issues. 69 In Waind (supra), Moffitt P referred to the issue of "apparent relevance" in the following terms:- "Production of a document on subpoena by a stranger is only required if the document is sufficiently relevant to the action in the sense that it is likely to add in the end, in some way or other, to the relevant evidence in the case." 70 The relevant tests in respect of a decision to set aside a notice to produce were considered by Brereton J in Portal Software v Bodsworth [2005] NSWSC 1115 at in particular at [24] to [26]. On the basis of the authorities there cited, the following propositions emerge:-

(1) The relevant test in terms of documents is whether they have "a sufficient apparent connection to justify their production or inspection" : White v Tulloch (1995) 127 FLR 105.

(2) The test of adjectival relevance is satisfied if the material had apparent relevance and was established if the documents called for "could possibly throw light on the issues in the main case" : Trade Practices Commissioner v Arnotts Limited (1989) 21 FCR 306 per Beaumont J.

(3) A subpoena has a legitimate forensic purpose if it appears to be "on the cards" that the documents sought will materially assist the defence in criminal proceedings: Alister v The Queen (1984) 154 CLR 404, 414 per Gibbs CJ; Regina v Saleam (1989) 16 NSWLR 14, 18. 71 In Portal Software (supra), Brereton J observed that it was plainly not the question at the initial stage in dealing with the subpoena as to whether the documents, production of which is sought, will definitely advance the case of the party issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that they will do so. 72 In the present proceedings, it is necessary to determine the issues in the proceedings by reference to the pleadings, the affidavits and the legal principles governing the claim for relief in the substantive proceedings.

(2) Application of the principles 73 In the Written Submissions for the Defendant, Ms J M Sandford of counsel contended:- "22. At the trial of this action the defendant will bear the evidentiary onus of establishing the nature, and the future probable effects of any pre-existing condition in the first plaintiff, and of 'disentangling' the causes of the first plaintiff's condition, and of showing to what extent that condition might have given rise … to the first plaintiff's claimed disabilities and requirement for treatment and care, in any event." 74 That submission was supported by observations as to the evidential onus on a defendant as explained in Watts v Rake (1960) 101 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164 as discussed in Seltsan Pty Limited v Ghaleb [2005] NSWCA 208. 75 It was contended on behalf of the defendant that the issue of the subpoenas in the present case cannot be characterised as illegitimate "fishing", namely, an endeavour on the part of the defendant not to obtain evidence to support its case, but to discover whether it has a case at all, or to discover the nature of the case for GB: Commissioner for Railways v Small (1938) 38 SR 564 at 575 per Jordan CJ. 76 The defendant relied upon the opinion expressed, in particular, in the report of Professor John Christodoulou, the report of Dr Russell Dale and that of Ms Fenton, together with the report of Professor Turner. It was said that the opinions expressed in these reports established that the subpoenas had been issued for a wholly legitimate, as opposed to a speculative, purpose (Written Submissions for the Defendant, paragraph [26]):- "… That purpose is, in essence, to investigate as best it can, and to collate evidence with a view to discharging its evidentiary burden at trial, and to enable the Court to properly conduct the exercise identified in Ghaleb (supra)." 77 It was further submitted that the recipients of the subpoenas issued in the present case were not faced with any uncertainty that puts them to the task of making a judgment as to what materials were required to be produced in answer to the subpoenas. 78 In the course of submissions, Ms Sandford on behalf of the defendant relied upon the medical reports in evidence on this application as establishing the following:-

(1) That both GB and his sister, AB, had the same neurological disorder of microcephaly (which is a lesser than expected head circumference).

(2) That GB and AB had the same metabolic condition.

(3) That there is evidence in both cases of rhabdomyolysis.

(4) That both have had a history of elevated CK levels. 79 Ms Sandford contended that the combination of medical similarities established by the three medical reports referred to in oral submissions including, in particular, that of Professor Turner operate to discharge the burden of proof on the defendant in demonstrating that there was a clear legitimate forensic purpose to the subpoenas that have been issued. It was submitted that the material in support of the application clearly demonstrated relevance to the issues joined. 80 Reliance was also placed upon the Amended Statement of Particulars as to the nature of the injuries and disabilities alleged in the present proceedings and that the defendant had the legitimate forensic purpose in investigating those disabilities for the purposes stated above. 81 Ms S Norton SC, who appeared on behalf of GB, referred to a number of matters in support of the proposition that would lead to the conclusion that, so far as GB and AB were concerned, there was no basis for the contention that one was comparing like with like. One matter advanced in support of this contention was that the condition of GB was different from AB in that his disabilities basically required full-time assistance with everything, whereas, for example, in the report of Ms Fenton there is no suggestion that his sister required anything like that degree of care. 82 Ms Norton referred to the report of Professor John Christodoulou dated 1 August 2007 which was marked as Annexure C to the affidavit of Mr Bridge-Webb sworn 20 March 2009. In that report it was observed:- " [AB] and her brother … have the same neurological disorder - microcphaly, severe developmental delay, seizures and elevated CPK with intercurrent illnesses. [AB] is less severely affected than [the first plaintiff] , and is interactive and starting to mobilise …". 83 Ms Norton emphasised that this observation indicated divergence in the level of disability between the two siblings. 84 She maintained that such divergence is also noted in the report of Dr Dale dated 21 August 2008, Annexure D to Mr Bridge-Webb's last-mentioned affidavit. 85 Attention was also drawn to the observation of Dr Erikson in his report (p.3.9) wherein he observed that it had not been confirmed that GB's condition arose from or was associated with a metabolic disease. 86 Ms Norton submitted:-

(1) There was no specific diagnosis for either GB or AB and, therefore, there was not a sufficient foundation for the suggestion that comparing the records of the two would be comparing the records of like people. In those circumstances, it was submitted, there cannot be any relevance to the obtaining of the medical reports of AB.

(2) The fact that both children suffered from rhabdomyolysis is not determinative. This was contended upon the basis that the medical evidence indicated there are multiple potential causes for the condition. It was, accordingly, submitted that the fact that AB suffered rhabdomyolysis resulted from an unknown underlying disease is not relevant to the fact that GB suffered from the same condition.

(3) That there remained no definite genetic diagnosis in respect of either GB or his sister, AB. Whilst it was said there may be a similarity between certain of the two children's symptoms, there was no evidence that it resulted from any genetic diagnosis or shared genetic disorder or shared metabolic disorder. 87 The issue of relevance or apparent relevance was, accordingly, disputed on the above bases, or any combination of them. 88 Ms Norton, as earlier noted, also relied upon the evidence which indicates that GB and AB have differences in development and severity of disabilities.

Consideration 89 On an application to set aside a subpoena this Court is neither required to nor should attempt to derive from the evidence firm conclusions on the medical issues between the parties. It would, of course, be premature to do so and, in any event, it is not necessary for the purpose of resolving the application. 90 What the Court is required to do is to identify from the evidence adduced for and against the application the legal and factual issues that arise in the proceedings. Once those issues are clearly identified, the Court should then examine the terms of each subpoena in relation to the issue of apparent relevance. In the nature of such an application, the factual (including medical issues) may later change complexion or validity according to the evidence at a final hearing. Be that as it may, it is necessary on an application to set aside a subpoena to take the issues as they presently emerge in the evidence. 91 In undertaking that task, I am required to have regard to GB's medical history, the medical diagnosis of his condition and the matters subjacent to the aetiology or cause of that condition, as well as the treatment and assessment of his disabilities in terms both of their nature and their extent. 92 Similarly, in determining the issue of apparent relevance, I am to have regard to the limited medical and occupational therapy material in evidence as to similar matters concerning AB. In light of such material, the question to be answered is whether there exists a sufficient basis for a conclusion that AB's medical "case", in terms of the matters specified in the preceding paragraph, is such as to support the issue of the subpoenas for production of the documents in question. 93 I will deal, firstly, with the evidence concerning GB's sister, AB. This is principally to be found in the report of Professor Turner dated 21 November 2008. 94 The information available for the purpose of that report were, as noted above, the clinical records of the Children's Hospital, Westmead and Sydney Children's Hospital. These, according to Professor Turner, indicate that:-

(1) AB definitely has the same metabolic condition as GB.

(2) She has had two episodes like GB of rhabdomyolysis (July 2005 when she was 18 months of age and in May 2008). On both occasions, her CK was recorded at over 100,000 units/litre.

(3) Despite numerous investigations, there has been no specific diagnosis.

(4) AB has been severely developmentally delayed and her clinical picture was said to be not that different from GB, apart from the fact that she has mobility and will require long-term care.

(5) In familial cases of severe metabolic conditions that affect brain development, there is often variability in how it is expressed in affected family members.

(6) The evidence the both children have had rhabdomyolysis, according to Professor Turner, excludes a viral cause.

(7) Whilst there is still no definite genetic diagnosis in both children, there was an identical breakdown of muscle which is a very rare event. 95 It is on the basis of the above that the question is asked, what is the apparent relevance of the documents relating to AB's medical condition, including diagnosis and disabilities, to that of GB? The answer, in my opinion, is that, in the case of two siblings of tender age who have the same metabolic condition, who have both had two episodes of rhabdomyolysis with markedly elevated CK on each occasion, a basis is established for the proposition that the evidence is, prima facie, capable of establishing that GB had a relevant pre-existing condition or predisposition, whatever be its precise nature that could have, in time, produced disabilities not markedly dissimilar from AB, although not identical in either nature or extent. 96 On that basis, I have concluded that the medical records pertaining to AB "could possibly throw light" on the issues in the substantive proceedings in this case. Those issues include:-

(1) The possible existence of a predisposition or underlying condition in GB that may have become manifest in some form quite apart from the alleged negligent treatment.

(2) The issue of causation that requires of a defendant the task of disentangling the effects of such a condition from any disabilities shown to be caused by the alleged treatment or the alleged failure to treat GB. 97 I consider that the issues to which I have referred in the preceding paragraph provide a sufficient basis for the issue of the subpoenas. I do not consider that it is necessary for the disposal of the application to deal with other complex issues (including causal issues) that will ultimately fall for consideration of liability at a final hearing. 98 It remains to consider the submissions made in relation to the provisions of Division 1A - Professional Confidential Relationship Privilege.

Application of the provisions of Division 1 - Professional Confidential Relationship Privilege - Evidence Act 1995 99 These provisions were incorporated into the Evidence Act by the Evidence Amendment (Confidential Communications) Act 1997. In the Second Reading Speech, the Attorney-General for the State of New South Wales:- "This protection will extend to a wide range of confidential communications and may include confidences imparted to doctors and other health professionals, journalists, social workers and in other relationships where confidentiality is an integral element" : NSW Legislative Council, Debates (22 October 1997), p.1121 100 Section 126B in Division 1A(2) and (3) provides as follows:- "126B Exclusion of evidence of protected confidences (1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:- (a) a protected confidence, or (b) the contents of a document recording a protected confidence, or (c) protected identity information. (2) The court may give such a direction: (a) on its own initiative, or (b) on the application of the protected confider or confidant concerned (whether or not either is a party). (3) The court must give such a direction if it is satisfied that: (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and (b) the nature and extent of the harm outweighs the desirability of the evidence being given. …" 101 Section 126B(4) then refers to a number of matters that the Court may take into account for the purposes of s.126B. These include the probative value of the evidence the proceedings. 102 Section 126B(4) also permits the Court to take into account a likely effect of adducing evidence of the protected confidence, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider. 103 The Court is required by s.126B(5) to state its reasons for giving or refusing to give a direction under this section. 104 Section 126A(1), inter alia, defines "protected confidences" meaning:- "… a communication made by a person in confidence to another person (in this Division called the confidant ):- (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant." 105 The expression "protected confider" is defined as meaning "… a person who made a protected confidence". 106 In the affidavit sworn by Mr Jankov on 20 August 2009, it is stated:- "16. It is not in [AB's] interest that confidential medical information about her is made available and is used as contemplated by the Defendant. That information is private to her. If the Defendant were to use such information in the manner suggested, [AB] may become involved in the litigation and may become the subject of otherwise unnecessary investigations and scrutiny." 107 In her submissions, Ms Fraser of counsel submitted (transcript, 9 December 2008, p.15):- "…. this obviously is a family under severe stress with two seriously disabled children and both need care and treatment. My client needs to have medical treatment which is untrammelled by the existence of these proceedings. The purpose of taking her to medical practitioners and of giving a full history is so that she will receive optimum treatment. If that is inhibited or imperilled in any way then it is against her interests and the public interests that the document be used by the defendant ..." . 108 Ms Fraser also submitted (transcript, 9 December at p.15):- "The mother's evidence is that it is something which is presently weighing on her mind when she is taking or thinking about taking the daughter for medical treatment. The fact that there is a potential, whether that is soundly and rationally based, or whatever, but that is her evidence." 109 In National Roads & Motorists Association v Whitlam [2007] NSWCA 81, Campbell JA (with whom Beazley JA and Handley AJA agreed) stated:- "122 In relation to those confidential documents that fit within a recognised category of privilege (other than the special "protected confidential relationships" privilege) the law has already made a judgment that the documents fall within a class whose confidentiality is such that the administration of justice must proceed without them: Waterford v The Commonwealth (1987) 163 CLR 54 at 64-65; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128, 133-135; Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501 at 511, 563. In relation to the category of protected confidences established by section 126A-126E Evidence Act 1995 , the Court is required, by section 126B, to form a view, at the time such a confidence is sought to be adduced in evidence, about whether it is more important that the confidence be protected than that the evidence be available. The need to form that view at the time of tender of the evidence can influence a judge's decision about whether at any earlier stage to permit inspection of such a document, and if so on what terms: Urquhart v Lanham [2003] NSWSC 109." 110 As Campbell JA also recorded in that case at [123], for confidential information that is not privileged, and not within s.126A to s.126E, the usual approach of the Court is that, to the extent to which the confidential information is relevant to the conduct of the proceedings, it is more important that it be used in the administration of justice than that the confidence be protected. However, it is a matter for the discretion of the trial judge whether to follow that usual course in any particular case. 111 In the Defendant's Supplementary Submissions dated 11 December 2009, it was submitted, in my view with respect, properly:- "2. To the extent that the documents the subject of the present applications contain references to statements made by AB's parents, on behalf of AB, or recitations of history and expressions of opinion, or other commentary sourced from such statements, it is accepted that the provisions of s.126B of the Act are relevant to the exercise of the discretion as to whether or not to permit inspection (see: Urquhart v Lanham [2003] NSWSC 109 at [15] - [16]: Director-General, Department of Corrective Services v D [2006] NSWSC 827 at [17]." 112 I accept as Ms Sandford has submitted that medical commentary on the results of investigations performed and recorded observations based on clinical examinations in relation to the treatment of AB does not comprise a record of "protected confidence" within the meaning of s.126A of the Evidence Act nor could such information be said to have its source in "a protected confidence". 113 The further submission made, which I, with respect, consider was properly made, was:- "… at the same time, it is acknowledged that, to the extent that the reports recite certain matters of history, the source of that information is most likely to lie in confidential communications had between AB's parents, on behalf of AB, and AB's medical attendance." : Defendant's Supplementary Submissions , paragraph [5]. 114 The further submission made on behalf of the defendant is that the Court was not invited by or on behalf of AB to examine the documents and the Court has not been assisted by the tender of any evidence which would touch or reveal the nature and content of any "protected confidences" that may be recorded in the documents that have been produced in answer to any of the subpoenas. 115 In those circumstances, it was contended that, there not having been any inspection of the documents produced on 30 January 2009, there can be no speculation as to their contents. The defendant properly accepted, however, that parts of such documents produced may contain a record of or contain information sourced from, confidential communications made by AB's parents on behalf of AB. 116 It was contended that in dealing with this aspect, the Court would be influenced by the fact that it has not been invited to examine the documents and there was no evidence adduced as to the nature and extent of any confidential material. In those circumstances, it was submitted that the applicants had failed to demonstrate that any information in the nature of the "protected confidence" that may be recorded in, or indirectly disclosed by, the documents produced on 30 January 2009, is such as to weigh against permitting inspection of documents notwithstanding their confidentiality. Reliance was placed upon the observations in Director-General, Department of Community Services v D [2006] NSWSC 827 at [24]: Defendant's Supplementary Submissions, paragraph [10]. 117 I consider there is much force in what has been submitted by Ms Sandford on behalf of the defendant. In particular, I note that there has been no evidence adduced from any treating medical practitioner in support of the application made in relation to the matter of confidential communications. 118 However, in the circumstances of the present case involving as it does issues concerning the medical condition of AB who is of tender years and in circumstances in which her parents have a legitimate concern for the preservation of confidentiality of all communications between them and treating medical practitioners, I consider, as a proper exercise of the discretion on the matter, that the legal representatives for the intervenor should have to have a full and proper opportunity of inspecting all documents that have been produced in answer to the eight subpoenas with a view to identifying any confidential information of the nature to which I have referred. 119 In the event that confidentiality is claimed in respect of any reports or parts of any reports of other documents that have been produced, then an additional opportunity should be given to the intervenor to make a claim in that respect, and, in the event that any such claim cannot be resolved, liberty be granted to apply for the matter to be dealt with by this Court. To that end, I request the parties to produce short minutes of orders which would give effect to such a mechanism designed to ensure that AB and her parents have the requisite protection in relation to each and every confidential communication.

(1) The amended notice of motion filed on 5 June 2009 is dismissed.

(2) The notice of motion dated 20 August 2009 filed by leave granted on 14 April 2009 by or on behalf of AB is, subject to (3) below, dismissed.

(3) I direct the legal representatives on behalf of AB to produce short minutes of order to give effect to the procedure to be followed on the issue of confidential communications.

(4) Liberty to any party to apply in relation to any matter arising from this judgment.

Subpoena issued on the 10 November 2008 to The Children's Hospital Westmead The documents or things you must produce are as follows:-

All documents and records relating to the hospitalisation, treatment and testing AB , born on 23 February 2004 including x-ray films and reports, pathology requests and reports, photographs, clinical and nursing notes, operation reports, medical reports, admission cards, test results, treatment sheets and including records of treatment as an inpatient or outpatient at the Children's Hospital Westmead.

Subpoena issued on the 10 November 2008 to Sydney Children's Hospital The documents or things you must produce are as follows: All documents and records relating to the hospitalisation, treatment and testing AB, born on 23 February 2004 including x-ray films and reports, pathology requests and reports, photographs, clinical and nursing notes, operation reports, medical reports, admission cards, test results, treatment sheets and including records of treatment as an inpatient or outpatient at Sydney Children's Hospital.

Subpoena issued on the 13 January 2009 to Dr Alison Colley The documents or things you must produce are as follows: All records and documents including x-ray films, x-ray reports, CT, MRI, EEG and ECG reports, history cards, clinical notes, letters of referral, correspondence with other treating doctors, reports of medical examinations conducted by you, test results, including radiology and pathology relating to your treatment of AB, born on 23 February 2004.

All records and documents including x-ray films, x-ray reports, CT, MRI, EEG and ECG reports, history cards, clinical notes, letters of referral, correspondence with other treating doctors, reports of medical examinations conducted by you, test results, including radiology and pathology relating to your treatment of GB, born on 1 March 2000.

Subpoena issued on the 13 January 2009 to Kimberly Tan The documents or things you must produce are as follows: All records and documents including x-ray films, x-ray reports, CT, MRI, EEG and ECG reports, history cards, clinical notes, letters of referral, correspondence with other treating doctors, reports of medical examinations conducted by you, test results, including radiology and pathology relating to your treatment of AB , born on 23 February 2004.

Subpoena issued on the 13 January 2009 to Sarah Starr The documents or things you must produce are as follows: All records and documents including x-ray films, x-ray reports, CT, MRI, EEG and ECG reports, history cards, clinical notes, letters of referral, correspondence with other treating doctors, reports of medical examinations conducted by you, test results, including radiology and pathology relating to your treatment of AB, born on 23 February 2004 . All records and documents including x-ray films, x-ray reports, CT, MRI, EEG and ECG reports, history cards, clinical notes, letters of referral, correspondence with other treating doctors, reports of medical examinations conducted by you, test results, including radiology and pathology relating to your treatment of GB, born on 1 March 2000 .
Subpoena issued on the 13 January 2009 to Neisha Gunn The documents or things you must produce are as follows: All records and documents including x-ray films, x-ray reports, CT, MRI, EEG and ECG reports, history cards, clinical notes, letters of referral, correspondence with other treating doctors, reports of medical examinations conducted by you, test results, including radiology and pathology relating to your treatment of AB, born on 23 February 2004 . All records and documents including x-ray films, x-ray reports, CT, MRI, EEG and ECG reports, history cards, clinical notes, letters of referral, correspondence with other treating doctors, reports of medical examinations conducted by you, test results, including radiology and pathology relating to your treatment of GB, born on 1 March 2000 .

Subpoena issued on the 13 January 2009 to Dr Joanne Leal The documents or things you must produce are as follows: All records and documents including x-ray films, x-ray reports, CT, MRI, EEG and ECG reports, history cards, clinical notes, letters of referral, correspondence with other treating doctors, reports of medical examinations conducted by you, test results, including radiology and pathology relating to your treatment of AB, born on 23 February 2004 .

Subpoena issued on the 13 January 2009 to The Royal Institute for Deaf and Blind Children The documents or things you must produce are as follows: All documents and records relating to the assessment, treatment, referral, management and testing of AB, born on 23 February 2004 including investigation films and reports, pathology requests and reports, photographs, clinical and nursing notes, medical reports, ancillary treatment reports, admission cards, test results, assessment reports, referrals, reports, treatment sheets and including records of treatment. All documents and records relating to the assessment, treatment, referral, management and testing of GB, born on 1 March 2000 including investigation films and reports, pathology requests and reports, photographs, clinical and nursing notes, medical reports, ancillary treatment reports, admission cards, test results, assessment reports, referrals, reports, treatment sheets and including records of treatment.

Subpoena issued on the 13 January 2009 to Dr F Romeo The documents or things you must produce are as follows: All records and documents including x-ray films, x-ray reports, CT, MRI, EEG and ECG reports, history cards, clinical notes, letters of referral, correspondence with other treating doctors, reports of medical examinations conducted by you, test results, including radiology and pathology relating to your treatment of AB, born on 23 February 2004. All records and documents including x-ray films, x-ray reports, CT, MRI, EEG and ECG reports, history cards, clinical notes, letters of referral, correspondence with other treating doctors, reports of medical examinations conducted by you, test results, including radiology and pathology relating to your treatment of GB, born on 1 March 2000.

Subpoena issued on the 13 January 2009 to The Spastic Centre of NSW The documents or things you must produce are as follows: All documents and records relating to the assessment, treatment, referral, management and testing of AB, born on 23 February 2004 including investigation films and reports, pathology requests and reports, photographs, clinical and nursing notes, medical reports, ancillary treatment reports, admission cards, test results, assessment reports, referrals, reports, treatment sheets and including records of treatment.

All documents and records relating to the assessment, treatment, referral, management and testing of GB, born on 1 March 2000 including investigation films and reports, pathology requests and reports, photographs, clinical and nursing notes, medical reports, ancillary treatment reports, admission cards, test results, assessment reports, referrals, reports, treatment sheets and including records of treatment. **********

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