HIS HONOUR: Before the Court are two Notices of Motion, one filed by the defendant on 14 April 2020 seeking to set aside a subpoena filed and one filed on 17 April 2020 by the plaintiff seeking, where relevant, that the first mentioned Notice of Motion be struck out for want of prosecution. Effectively, it was a motion to hurry the defendant on in relation to its evidence.
Mr Morris of senior counsel and Mr Ower appeared for the plaintiff and Mr Doak appeared on the first day of the hearing and Mr Stanton appeared on the second day of the hearing for the defendant.
The defendant relied on the affidavit of Raelene Sneddon dated 17 April 2020 and two affidavits of Mark Jeppesen dated 23 April 2020 and 29 April 2020. The plaintiff relied on two affidavits of Stuart Gray dated 20 April 2020 and 29 April 2020.
Counsel for the parties also provided to the Court extensive written submissions in relation to the subpoena. The Court has to look at the subpoena and the arguments that are made as to it in the light of the evidence before it at the moment of considering the applications.
The background to the matter is that the plaintiff was employed by the Ambulance Service of New South Wales as a paramedic for an extensive period from October 1996 to 2014, a period of some 18 years. The plaintiff, in a very lengthy Statement of Claim filed 5 March 2019, claims breaches by the defendant of, inter alia, duties of care said to be owed to the plaintiff in relation to his proper training and supervision and having procedures in place to deal with the traumatic experiences that paramedics must confront as part of their duties. Breaches are alleged in relation to the failure to have systems in place and, in particular, the failure to exercise proper care following the plaintiff's exposure to specified particular traumatic events.
The Statement of Claim refers in a number of paragraphs to traumatic occasions which the plaintiff encountered in the course of his work. It is fair to say, if established, that a number of these are horrific in the extreme and I refer as some examples to paragraphs 23, 33, 48, 54 and 72 of the Statement of Claim.
In a Defence filed on 1 April 2019 by the defendant, the defendant made clear that it was putting the plaintiff to proof in relation to his allegations and did not admit the allegations made about the traumatic events. There are a number of paragraphs in the Defence to that effect. I refer, for example, to paragraphs 20 and 28, but they are mere examples.
In paragraph 20(b) of its Defence, the defendant stated in answer to paragraphs 23 and 24 of the Statement of Claim that it neither admits nor denies the nature, frequency and content of the events upon which the plaintiff attended. Similarly, in paragraph 28, there is a similar pleading in the Defence in relation to paragraphs 33 to 48 of the Statement of Claim. The defendant pleaded there that it neither admits nor denies the nature, frequency and contents of the events upon which the plaintiff attended and leaves the plaintiff to proof in relation to the allegations in paragraphs 33 to 48 of the Statement of Claim.
The plaintiff's claim, essentially, is that he suffered a number of psychiatric injuries as a result of his service in the Ambulance Service of New South Wales.
Mr Morris of senior counsel submits, in my view with some force, that:
1. The plaintiff, whilst having memory of particular traumatic events, cannot be expected many years after the events to have recollections of all relevant events or dates;
2. Matters that he may have forgotten may be relevant to the claim; and
3. The defendant, as has been established on the evidence, is the repository of a number of relevant documents relating to ambulance callouts where the plaintiff was one of the paramedics involved.
Mr Stanton of counsel submits that the documents sought are of no or limited relevance, as the nature of the case is directed towards training, instructions and intervention. Mr Morris submits that the documents sought are of central relevance.
At this point, it is relevant to look at the subpoena itself. The subpoena was filed on 18 November 2019 by the plaintiff and seeks that the defendant produce "all Patient Health Care Records in which the Plaintiff (Daniel Henry, DOB 16/06/1975) is described as the or one of the attending paramedics between October 1996 and 14 November 2014".
It is clear on the evidence that the subpoena would capture thousands of records. It is noted that the time frame of the period caught by the subpoena is the entire employment period of the plaintiff. However, Mr Morris has indicated that the plaintiff no longer seeks documents up to the end of 2001. Accordingly, the period in issue has been reduced. Secondly, Mr Morris identified certain categories following production of a lengthy list of callouts from the defendant which were no longer pressed. He said there was some uncertainty in relation to other categories.
The background to the matter other than as set out in the pleadings is established by the evidence. The evidence establishes:
1. That the plaintiff gave notice of a claim against the defendant in 2015;
2. In November 2015, the defendant's solicitors sought further and better particulars of the claim;
3. Some considerable time later, on 10 July 2017, the solicitors for the plaintiffs provided further and better particulars and stated in paragraph 3.6 in the answer to the request for particulars as to what was meant by "traumatic events" that "traumatic events means those events that were stressors materially contributing to the Plaintiff's claimed injury. This is not a proper request for particulars though we would be pleased if you would provide us with a printout of every job our client ever attended as part of his duties with the Ambulance Service of New South Wales this information being in the Defendant's possession and knowledge"; see Court Book p 59.
It seems from this that what was being sought by the plaintiff was a copy of each of the relevant ambulance records maintained by ambulance officers who attend a relevant event or accident referring to the plaintiff as a paramedic. It may thus be seen that the plaintiff was seeking these documents in July 2017, some considerable time ago;
1. The Statement of Claim was filed on 5 March 2019;
2. The Defence was filed on 1 April 2019;
3. The parties went through the necessary prefiling procedure under the relevant workers compensation legislation;
4. On 18 November 2019, the subpoena was filed;
5. The defendant, in answer to the subpoena, wrongly produced only one document, being a document in which the plaintiff was referred to as a patient;
6. The error was pointed out to the defendant on 21 January 2020;
7. As far as I can see, there was then a considerable delay within the Ambulance Service in dealing with the issue of the records sought within the subpoena
8. In particular, in a letter dated 17 February 2020, the solicitors for the defendant, based on instructions, stated that the defendant was not able to source records by treater name details, but only by patient details. That was accepted later to be incorrect;
9. In correspondence, the plaintiff's solicitors continued to press for the production of the documents;
10. On 26 March 2020, the solicitors for the defendant indicated that the defendant had conducted extensive searches and there were thousands of records that fell within the scope of the request. The view was expressed that the request was oppressive. The legitimate forensic purpose of the production was requested and also the plaintiff was asked whether there was a possibility to limit the scope of the subpoena to issues directly relevant to the matter;
11. Thereafter, following further pressing by the solicitors for the plaintiff in relation to production, by letter dated 3 April 2020 the solicitors for the defendant indicated that they had instructions to file a Notice of Motion to set aside the subpoena;
12. There was a further delay in that Notice of Motion being filed. The solicitors for the plaintiff pressed in relation to the matter. See the letter dated 8 April 2020;
13. Eventually, the Notice of Motion was filed on 14 April 2020 and, after a short delay, the affidavit of Ms Sneddon was filed, followed by the first affidavit of Mr Gray.
Importantly, when the matter came on for hearing before me on 27 April 2020, I discussed with the parties whether there was some means of limiting the documents to be produced, having regard to the width of the subpoena, Ms Sneddon's evidence in her affidavit and the trial date. The matter is listed with an estimate of five days (which may seem very optimistic) on 4 May 2020. As a result of the discussions, a list was provided to counsel for the plaintiff by the defendant. That document is very lengthy.
It appears to be a printout of all attendances by the plaintiff as a paramedic from 1 July 2001 until 19 October 2014. It is correct to say that there are many references amounting in the thousands. In addition, Ms Sneddon, who is the relevant person with access to the microfiche of records of the defendant maintained prior to 2012, indicated that if she had to go through the microfiche records to identify those falling within the subpoena, that would take at least eight weeks to do, based on a prior experience in looking at a thousand records which took her two weeks in the light of her other duties. She said that there were two other officers that had been trained on the microfiche, but they had other duties to perform. She also gave evidence that if redaction of confidential details was needed, that would take even more time.
At the commencement of the hearing today of the Notices of Motion, I asked Mr Morris of senior counsel whether the provision of the list document meant that there could be some identification of more significant documents required. He said that even if a significant sample was identified, that there would be other documents potentially relevant.
Accordingly, the question is whether the subpoena should be set aside. I have read the written submissions of the parties. Mr Stanton, in addition to his written submissions, submits that the documents sought are not relevant to the issues between the parties. In the alternative, he submits that the relevant evidence is the oral evidence of the plaintiff about the traumatic events. He accepts that the contemporaneous ambulance records are the best records, but the relevance of the documents is so modest that it does not tip the scales in favour of allowing the subpoena.
Mr Stanton also submits:
1. That the subpoena was too wide and was oppressive in its terms;
2. That the peripheral relevance, if any, was outweighed by other matters. He pointed to the clear policy under the Health Records and Information Privacy Act 2002 (NSW), while recognising that Court processes were an exception under s 13 which permits a subpoena. He referred me to the decision of GB v Western Sydney Area Health Service [2010] NSWSC 181 as indicating a real concern by the Court in relation to documents with medical records of parties external to the proceedings;
3. Mr Stanton referred to the procedure under s 318 of Workplace Injury Management and Workers Compensation Act 1998 (NSW) in relation to the pre-proceedings procedure;
4. Mr Stanton submitted that the subpoena was oppressive having regard to the number of documents to review and the large amount of time and resources and costs which were needed to do so;
5. Mr Stanton referred to the principles in ss 56 to 58 of the Civil Procedure Act 2002 (NSW) and in particular, in s 57: the need for the Court to have an efficient disposal of the business of the Court and the just determination of the proceedings and the maintenance of the trial date;
6. Mr Stanton submitted that the plaintiff had waited too long until November 2019 to press for the documents and that the defendants should not be regarded as having delayed the matter having regard to the width of the subpoena and the extensive steps involved.
Mr Morris of senior counsel submitted in substance as follows:
1. The defendant was the repository of all information in relation to traumatic events involving the plaintiff in documentary form;
2. There could be no fair trial without the documents sought;
3. The defendant could even use the documents to cross‑examine the plaintiff;
4. A different test applied where a subpoena was issued to a third party compared to a party to the proceedings. In relation to a third party, the Court is more vigilant, but with the case of a party, they were aware of the issues in the proceedings and the identification of the relevance of the documents;
5. In relation to privacy concerns, an undertaking had been offered on 9 April 2020 (Court Book p 195) and, in any case, the legal practitioners were sought to be the first persons to look at the documents and they were governed by the usual principles in cases like Harman v The Home Office (1983) 1 AC 280.
6. It was submitted that the time for redaction was not relevant, in the light of these matters;
7. It was submitted that the importance of the documents was to establish what the plaintiff was doing at any one time. The frequency of the attendances and the nature of the attendances were important.
8. He did not accept that the documents sought were of limited relevance, rather they were central to the case, both as to the traumatic events, causation and breach issues and the application under s 151D of the Workers Compensation Act 1987 (NSW) for an extension;
9. The pleadings are important as showing that the defendant was putting the plaintiff to proof. In those circumstances, in particular, the subpoena was relevant;
10. Only some matters remain in the plaintiff's memory and he could not diagnose himself in relation to psychiatric injury. The ones he did not recall were just as important;
11. The documents, whilst extensive, were sought six months before the trial which was plenty of time to obtain them;
12. In relation to oppression, that had to be considered in terms of the nature of the dispute, the time frame, the limited procedures available to the plaintiff as discovery was usually not granted in personal injury cases and the fact that in many large commercial cases, extensive documentation may be sought;
13. As to the subpoena being too wide, some of the documents may not be relevant in the end, but that did not mean that the subpoena was inappropriate;
14. Six months was more than adequate for the defendant to have identified the documents and obtained the documents;
15. Although the refusal to set aside the subpoena may have consequences for the trial date, that is not a determinative matter.
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Principles to be applied
The principles to be applied in the matter are referred to in the written submissions of counsel which have been provided to me. Mr Stanton has referred to the helpful summary of the relevant principles to be applied in paragraph 62 and following of GB v Western Sydney Area Health Service [2010] NSWSC 181.
I also refer to the following cases:
1. A decision of mine, Northshore Real Estate Proprietary Limited v Real Estate Property Management Services Proprietary Limited [2017] NSWDC 44 at paragraphs 15 to 17, in which I referred to the decision of ICAP Australia Proprietary Limited v BGC Partners (Australia) Proprietary Limited [2009] NSWCA 307. I emphasised in paragraph 17 that the pleadings were crucial to determine the issues in dispute between the parties;
2. The detailed analysis of the principles by Ward J in Reinhardt v Reinhardt [2018] NSWSC 1102 at paragraphs 43 and following, in which her Honour, as usual, provides an illuminating discussion of the applicable law;
3. Reinhardt v Reinhardt has been followed in later cases including by Stephenson J in Gasnier v Gasnier Proprietary Limited [2019] NSWSC 833.
First, one must look at whether there is a legitimate forensic purpose for the issue of the compulsory process which is the subpoena in the present case. Various tests are referred to by Hall J in the GB case and by Ward J in Rheinhardt referring to the ICAP decision and other authorities. The tests include that the documentation sought:
1. Must materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents will assist;
2. Whether the documents sought have a sufficient apparent connection to justify their production or inspection. That will require a test of adjectival relevance as opposed to substantive relevance;
3. Whether the documents called for could possibly "throw light" on the issues in the main case;
4. Whether it is "on the cards" that the documents sought will materially assist on an identified issue.
A subpoena which, in effect, constitutes a "fishing expedition" where the subpoena is of a nature that drags a pool for the purposes of finding whether there is anything relevant of a wide nature will be set aside.
In relation to questions of oppression, a number of matters should be noted. Oppression can be on the basis that the subpoena is so widely framed as to be burdensome and oppressive and therefore, an abuse of process. Another basis of oppression is that it in substance amounts to a substitute for discovery.
Mr Morris helpfully sets out in his written submissions reference to cases such as National Employers Mutual General Association v Waind [1978] 1 NSWLR 372 where Glass JA stated, inter alia, "Of course, it may be that the terms of the subpoena are so wide that it is oppressive, but this is not because it is used for 'discovery' … but because it imposes an onerous task on a stranger to collect and product documents, many of which can have no relevance to the litigation": at 382. Oppression can also occur where the party is not a stranger.
Mr Morris also referred to the analysis in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Limited [1984] 1 NSWLR 710 at 719 to 720 to the effect that a subpoena may call for the production of such a large number of documents of doubtful relevance that it should be regarded as oppressive and an abuse of process. In addition, oppression can occur through the steps and costs involved of a party to obtain the documents referred to falling within the subpoena.
I reject the submission of Mr Stanton that documents falling within the subpoena are of no relevance or are of peripheral relevance. Documents falling within the subpoena will very likely contain evidence of highly traumatic events which the plaintiff attended in the course of his time as a paramedic. In my view, having regard to the way the Statement of Claim is pleaded, such documents can be of central relevance to the proceedings.
I also reject the argument in relation to the time period for production of the documents as being oppressive. In my view, as the subpoena was filed in December 2019, the defendant has had more than enough time to be able to properly review the scope of the subpoena, investigate the documents caught and investigate the time involved to produce them. The evidence, in my view, establishes that the defendant was dilatory in considering the subpoena and documents properly falling within it, and what was involved in producing documents following an examination of its records.
In saying that, I make no criticism of the solicitor acting for the defendant who appears to have been diligent at all relevant times, including offering assistance to the defendant in relation to the subpoena. In my view, there was time within the six months to deal with this matter.
However, I have to deal with the applications and the Motions in the light of the material before the Court, including material recently obtained. I am concerned in relation to the width of the subpoena. I am particularly concerned that even with the concessions made recently by the plaintiff, that every one of the Patient Health Care Records in which the plaintiff is one or more of the attending paramedics is sought by the subpoena. I read the subpoena as only seeking the Patient Health Care Record, not other related documents. I do that by the use of capitals in the schedule to the subpoena.
Accordingly, the documents sought are similar to the one which was produced by the defendant relating to the plaintiff as a patient himself. However, even taking into account the pleadings, I am concerned about the width of the subpoena and the fact that, by its nature, it will require the production of many documents which, in my view, could have no apparent relevance to the issues in the case. In particular, there has not been an attempt to narrow down the scope of the subpoena, despite the invitation in the 26 March 2020 letter.
As I indicated, oppression can occur through the width of the subpoena and the consequences of the width in what has to be looked at. Evidence was given by Ms Sneddon as to the amount of time to be taken. I will come back to this point.
In relation to the privacy issues, in my view, whilst they are important, they can be dealt with through undertakings or through limited access and potentially redaction. In relation to the Health Records and Information Privacy Act 2002 (NSW), clearly the interests of patients is highly significant. I agree with the matters consistent with that referred to by Hall J in paragraphs 117 and 119 of the GB case which I have mentioned above. The clear policy of the Act is, where relevant, to attempt to protect the privacy of third parties and they are the persons who are referred to in the documents sought.
However, I accept the submission of Mr Morris that the matter can be properly dealt with through undertakings and there is protection through the Harman v Home Office principle. There could also be redactions.
In the end, the matter comes back to the width of the subpoena, in the light of the evidence. The schedule to the subpoena has no restriction except as to the employment period of the plaintiff. I note that more recently it is accepted that documents prior to 1 January 2002 are not required. The subpoena seeks all the Patient Health Care Records of the plaintiff where he is one of the paramedics, which are of a very substantial number, without any discrimination in relation to subject matter or the like. Some categories are not sought.
Mr Morris, in substance, has submitted that, having regard to the particular circumstances of this case, the schedule is permissible because the plaintiff does not have the records, he only has his recollections, and the records are held by the defendant. The plaintiff by the Statement of Claim is really doing the best he can to identify the documents.
That, in my view, was a reasonably persuasive argument until recently. However, in my view, the affidavit of Mr Jeppesen of 29 April 2020 has altered the landscape of the case and the application. First, it shows the number of incidents where the plaintiff attended from 2001 to 2014. Secondly, it refers to what is described as the CAD problem. The document itself could be a useful document to tender at any trial.
Having regard to the evidence of Ms Sneddon and that document and also having regard to the general principles relating to oppression as to the width of the subpoena, balancing all the submissions that have been made, I am left with the clear feeling that the subpoena is oppressively too wide and needs to be more restricted. I accept that many documents in the period could be relevant on the plaintiff's case.
I accept that initially it would be very difficult for the plaintiff to provide more specificity. However, in the light of the index document, and in the light of the matters which the plaintiff has been able to recall referred to in the Statement of Claim, and in the light of the particularly traumatic event pleaded in 2006, in my view, the schedule is too wide and accordingly, is oppressive. On that basis, in my view, it should be set aside.
In my opinion, a narrower subpoena or notice to produce seeking more specific documents, using the list or particular dates may well be held to be permissible. That would be my view. I take into account that the hearing date is very close, but that is not a dominating factor in my decision.
However, I must take into account ss 56 to 59 of the Civil Procedure Act. In my view, the plaintiff has not been dilatory in seeking the documents when he did, but the main concern I have is the width of the subpoena in the light of the evidence as to what is needed to be done to extract documents falling within it. In other words, the concern I have is the subpoena is simply too wide and thus oppressive.
For those reasons, in my view, in relation to the Notices of Motion filed 14 April 2020 and 17 April 2020, the order I make is that the subpoena filed 18 November 2019 is set aside.
[After hearing further submissions, including as to costs, the court made orders dealing with the two Notices of Motion.]
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Decision last updated: 20 May 2020