H -v- C [2025] WASC 446 | Case summary

Supreme Court of WA|2025-10-16|Before: Whitby J

[Redacted - fifth defendant] is the father of [redacted - first plaintiff] and the husband of [redacted - second defendant]. Given these parties share the same last name, I will refer to them by their first names with no disrespect intended.
[Redacted - fifth defendant] suffered a stroke in July 2024. This resulted in a dispute arising between [redacted - first plaintiff] and [redacted - second defendant] as to whether [redacted - fifth defendant] had capacity to do certain things, particularly whether he had capacity to remove and appoint directors of [redacted - first defendant]. That dispute was the catalyst for [redacted - first plaintiff] commencing these proceedings on 25 November 2024 seeking various declarations in relation to the composition of the board of [redacted - first defendant].
There were several interlocutory hearings in these proceedings. On 3 December 2024, at the request of [redacted - first plaintiff], the court issued a subpoena to the proper officer of Platinum Tiger Pty Ltd which required the production of medical documents relating to [redacted - fifth defendant]. In compliance with the subpoena, Platinum Tiger produced documents including medical records and reports relating to [redacted - fifth defendant]'s diagnosis, treatment, capacity and prognosis (Subpoena Documents).
[Redacted - first plaintiff] obtained copies of the Subpoena Documents in his capacity as the first plaintiff in this proceeding.
Separately, [redacted - first plaintiff] has commenced proceedings in the State Administrative Tribunal (SAT) seeking guardianship and administration orders over [redacted - fifth defendant] pursuant to s 40 of the Guardianship and Administration Act 1990 (the Act).
[Redacted - first plaintiff] seeks an order that he be permitted to refer to and use the Subpoena Documents in the SAT proceedings.
Platinum Tiger does not oppose an order to that effect being made.
[Redacted - fifth defendant] has neither consented to, or objected to, an order to that effect being made.

(1) affidavits of Nadine Lianne Edwards affirmed 16 September 2025 and affirmed 10 October 2025;

(2) outline of submissions filed 17 September 2025; and

(3) outline of submissions in response filed 9 October 2025.

[Redacted - second defendant] relies on her affidavit sworn on 5 December 2024 and an outline of submissions filed on 1 October 2025 in opposition to the application.
The nature of the Harman obligation is that, where a person is compelled to disclose documents for the purposes of particular litigation, the parties to the litigation cannot use those documents for any other purpose. The Harman obligation applies to documents produced on subpoena.[2]
The court may dispense with or modify the Harman obligation if it considers that there are special circumstances.[3] In Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd,[4] the Court of Appeal said that the most important consideration in deciding whether to exercise its discretion to modify or dispense with the Harman obligation to allow documents produced under compulsion in earlier proceedings to be used in other proceedings, was the likely contribution of the document or documents to achieving justice in the other proceeding.
Therefore, special circumstances justifying the modification of, or dispensation with, the Harman obligation in relation to the Subpoena Documents will be found where the use of the Subpoena Documents is reasonably required for the purpose of doing justice in the SAT proceedings.
An issue that is likely to arise in the SAT proceedings is whether [redacted - fifth defendant] is unable to make reasonable judgements in respect of matters relating to himself and his estate by reason of a mental disability. Section 3 of the Act provides that a mental disability includes medical conditions which may result in some permanent or temporary impairment of the function of [redacted - fifth defendant]'s mind.
The Subpoena Documents contain medical information recording that [redacted - fifth defendant] suffered a 'big stroke' in July 2024, his cognitive function was in great decline, he was unlikely to recover, especially where his language was concerned, that he was suffering from severe confusion and delirium and that his recovery is expected to take a long time. I am of the view that the Subpoena Documents contain important information which is relevant to [redacted - fifth defendant]'s past and current ability to make reasonable judgements in respect of matters relating to himself and his estate by reason of a mental disability.
I do not accept the submission made on behalf of [redacted - second defendant] that the matters recorded in the Subpoena Documents are no longer relevant because they have been superseded by subsequent medical reports on the specific question of [redacted - fifth defendant]'s capacity. That is because, irrespective of whether there are subsequent medical reports that do go to the question of [redacted - fifth defendant]'s current capacity (I note that [redacted - second defendant] has not provided those reports to [redacted - first plaintiff] despite his requests), the Subpoena Documents are relevant to the major health event, that being a big stroke, that [redacted - fifth defendant] suffered in July 2024 which first put [redacted - fifth defendant]'s capacity in issue.
I also do not accept the contention made on [redacted - second defendant]'s behalf that the modification of the Harman obligation would destroy [redacted - fifth defendant]'s privacy and/or the confidentiality of the Subpoena Documents. That is for the following two reasons.
Firstly, the only persons who will gain access to the Subpoena Documents in the SAT proceedings are [redacted - first plaintiff], [redacted - fifth defendant] and [redacted - second defendant]. [Redacted - first plaintiff], [redacted - fifth defendant] and [redacted - second defendant] already have the Subpoena Documents. No person who does not already have access to those documents will gain access to them by reason of those documents being used in the SAT proceedings.
Secondly, s 112 and s 113 of the Act impose strict requirements of confidentiality in respect of documents and personal information held by the SAT. The information contained in the Subpoena Documents is protected from disclosure outside of the SAT proceedings.
In summary, I find that there are special circumstances justifying the modification of the Harman obligation to permit the Subpoena Documents to be used and referred to in the SAT proceedings because those documents are reasonably required for the purpose of doing justice in the SAT proceedings.
It is appropriate that [redacted - first plaintiff], as the successful party, recover his costs of this application.
I make the following orders:
1. The first plaintiff be permitted to use the documents produced on subpoena by the Proper Officer Platinum Tiger Pty Ltd (Subpoena Documents) in the State Administrative Tribunal proceeding GAA [redacted].
2. The second defendant pay the costs of the first plaintiff's application by letter dated 21 July 2025 in relation to the Subpoena Documents forthwith, to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Referring to Harman v Secretary of State for the Home Department [1983] 1 AC 280.

[2] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [96].

[3] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASCA 108 [76].

[4] Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 [73] - [76].

Guardian and Administration Act 1990(WA)

Guardianship and Administration Act 1990

H -v- C [2025] WASC 446 (16 October 2025)

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Legislation Cited (2)

Cases Cited (1)