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[2001] NTSC 67
Supreme Court of the NT
2001-08-09
Martin CJ, Bailey J
Original judgment source is linked above.
Giblin v Beach [2001] NTSC 67
[1] In these proceedings, the plaintiff (respondent) is seeking damages from the defendant (appellant), a medical practitioner, arising from the alleged negligence of the defendant in failing to diagnose in a timely manner that the plaintiff was suffering from a condition which was likely, and in fact did, develop into bladder cancer.
[2] On 11 May 2001, the defendant filed four subpoenas for production seeking medical records of the plaintiff for defined periods. The subpoenas were directed to the following persons and related to the following periods:
(a) The Registrar, The Repatriation Hospital, Daw Park, South Australia: 1 November 1998 to 31 December 1998;
(b) Mr Graham Sinclair, Wayville, South Australia: 5 November 1998 to 18 March 2000;
(c) Dr D C Cambell, Darwin Private Hospital: 16 July 1998 to 22 October 1998; and
(d) Dr A McDonald, Malak Square Medical Centre: 18 February 1999 to 31 May 2001
[3] Each of the four subpoenas was returnable at Darwin at 9.30 am on 31 May 2001.
[4] With the exception of the subpoena addressed to Dr McDonald, the subpoenas had been answered by lodgment of the relevant medical records with the Registrar of the Supreme Court by at least 14 June 2001 when the matter came before the Master.
[5] The plaintiff had no objection to the defendant having access to the subpoenaed material (subject to being allowed seven days prior inspection to identify and notify any claims for privilege with respect to any of the documents).
[6] On 14 June 2001, the Master refused to make orders for inspection of the subpoenaed documents in favour of the plaintiff and the defendant. The Master ordered that the four subpoenas be dismissed and any documents produced be returned to the persons who produced them.
[7] The defendant appealed against the decision of the Master.
[8] On 2 August 2001, after hearing submissions from Mr Southwood QC on behalf of the defendant, I set aside the orders of the Master made on 14 June 2001 and granted liberty to the defendant to issue subpoenas for production of the relevant medical records to the four persons referred to above with a return date of 30 August 2001. I indicated that I would prepare written reasons in due course and now seek to do so.
[9] I note that the plaintiff was not represented at the appeal. The plaintiff's solicitor had indicated that the plaintiff was content to abide the outcome of the appeal.
[10] I also note that before allowing the appeal, I granted leave to the defendant, pursuant to O.77 r 05(6) to extend time within which to appeal the Master's decision. The appeal was filed eight days out of time due to a communication breakdown between the defendant and his solicitors. No prejudice was suffered by the defendant as a result of the appeal being filed out of time and, as I have indicated, the plaintiff was content to abide the outcome of the appeal without adopting an active role.
[11] In dismissing the four subpoenas, the Master did not provide extensive reasons. The transcript of the proceedings before the Master on 14 June 2001 runs to less than four pages and for the most part is a record of the submissions of the defendant's solicitor (Mr McConnell). In essence, the Master's decision was based on his understanding of a passage from the judgment of Martin CJ in Mamone v Gagliardi [2000] NTSC 95, Supreme Court of the Northern Territory, unreported 30 November 2000. The Master was of the view that the learned Chief Justice had:
"... made it clear in that case that a subpoena should only be returnable for a hearing unless otherwise ordered by the court" (emphasis added)
[12] The Master also observed in relation to the four subpoenas which the defendant had caused to be issued:
"I don't think this is a proper use of the subpoena"
[13] The Master relied in particular on paragraph [19] of the Chief Justice's judgment in Mamone. Before referring to that paragraph, however, it is appropriate to say something of Mamone generally.
[14] In Mamone, the plaintiffs were seeking an order for the grant of probate of a will of the late Guiseppe Gagliardi. The defendants opposed the grant broadly upon the grounds that the testator lacked testamentary capacity at the relevant time and that one of the plaintiffs exercised undue influence over the testator.
[15] The defendant's solicitor caused three subpoenas to be issued to a doctor, a hospital and an aged person's home who, it was claimed, had been involved with the deceased "during the time of his illness and in his later years". The doctor to whom the subpoena was addressed had previously supplied an affidavit to the plaintiffs' solicitors and had declined to assist the defendant's solicitor.
[16] Martin CJ held:
"[10] The action is at the stage where directions have been given as to the giving of evidence upon the hearing. No date has been set for the hearing. It is plain that the subpoenas were served with a view to securing the production of documents to the court in anticipation of the defendants being given permission to inspect them with a view to ascertaining whether there was anything thereby disclosed which might touch upon the issues in the case, particularly in regard to the deceased's testamentary capacity.
[11] Subpoenas are dealt with in O.42 of the Supreme Court Rules. A subpoena for production is an order in writing requiring the person named to attend as directed by the order for the purpose of producing a document or thing for evidence (r 42.01). The court may order a person named to attend at the trial or any other stage of the proceedings for the purpose of giving evidence or producing a document or thing for evidence (r 42.02). The date upon which the subpoena required the production of the documents to the court was not a date of trial or a date fixed for any other stage of the proceedings. It was a date fixed by Mr Galatas to suit his convenience. The production of the documents was secured not for evidence, but for the purpose of inspection to ascertain if they revealed any evidence. On their face, the subpoenas are not limited to documents which are relevant to any issue in the action (Waind v Hill [1978] 1 NSWLR 372)."
[17] His Honour then referred to O.32 of the Supreme Court Rules dealing with discovery from a non-party and continued:
"[14] The defendants have utilised the subpoena in an endeavour to achieve an objective for which it was not intended and for which another specific procedure is provided (CCC v Shell [1999] FCA 212; (1999) 161 ALR 686 at 696 and the cases there cited). That procedure allows for proper consideration and an opportunity for objections to be raised to the application raising the questions of privilege or the like."
[18] Martin CJ concluded his judgment with the following:
"[18] The defendants submitted that the documents being in possession of the court, the parties should be permitted to inspect them, but I accept what was put by counsel for the plaintiffs, that the ends do not justify the means, a fortiori where the means amount to an abuse of the process of the court. I am satisfied that that is the case.
[19] I should add that in my view r 42.06 does not assist the defendants. It is predicated upon a proper subpoena having been issued for production at a hearing and enables the person receiving the subpoena to produce the documents in advance of the date fixed for the hearing.
[20] The subpoenas are set aside (r 42.07). The documents produced are to be returned to those who produced them. They should, of course, be retained by them as some may be required at a later stage of these proceedings."
[19] Order 42 r 06, in substance, permits a person who is the subject of a subpoena for production to avoid attending court to produce the relevant material by handing it or posting it to the Registrar not less than two days "before the first day on which production is required by the subpoena to be made".
[20] It is apparent that in Mamone, the defendants were improperly seeking to use subpoenas for a "fishing expedition" while avoiding the safeguards and opportunities for objection available to parties and non-parties provided for by O.32. I agree with the submissions of Mr Southwood that that is a very different situation from the present case. Here, there is no issue as to whether the four persons to whom the subpoenas were addressed are in possession of relevant medical records relating to the plaintiff. Also in contrast to Mamone, the proceedings are at an advanced stage. The pleadings are closed and the plaintiff has filed and served on the defendant detailed particulars of alleged damages. In no sense are the four subpoenas in the present case a "fishing expedition".
[21] Mr Southwood referred me to a number of cases in the Federal Court which he suggested supported the proposition that a subpoena may be issued with a return date other than a date fixed for a "hearing". I do not consider that the authorities referred to provide any real assistance. The Federal Court Rules have no equivalent to O.32 of the Supreme Court Rules.
[22] Order 42 r 02(1) provides that the Court may:
"... by subpoena order that a person named attend the trial or any other stage of the proceeding for the purpose of ... producing a document or thing for evidence ..." (emphasis added)
[23] The express terms of O.42 r 02(1) do not confine the return date of subpoenas to a date fixed for trial or a hearing. I do not consider that the reference to "any other stage of the proceeding" are required to be read down to mean a date fixed for hearing. The learned Chief Justice in paragraph [18] of his judgment in Mamone does refer to "a proper subpoena having been issued for production at a hearing". However, His Honour's remarks were in the context of rejecting a submission by the defendants that the subpoenaed documents having been produced to the Registrar under O.42 r 06, the parties should be permitted to inspect them. Order 42 r 06 refers to lodgment of documents with the Registrar before the day "on which production is required by the subpoena". As with O.42 r 02(1) there is no express reference to a date fixed for hearing. I do not understand the learned Chief Justice's words as requiring a subpoena to be returnable only on a date fixed for a "hearing". In my view, the essence of His Honour's remarks regarding O.42 r 06 is that a subpoena is not to be used to circumvent the provisions for discovery from non-parties provided by O.32.
[24] In the present case, as I have indicated, there has been no attempt to circumvent O.32. The subpoenas sought to be issued by the defendant are directed to securing evidence relevant to the (closed) pleadings. The present proceedings have reached a stage where the issue of such subpoenas is appropriate.
Giblin
Beach [2001] NTSC 67
(1999) 161 ALR 686