Part 1, Rule 3 says:
"(1) The overriding purpose of these rules, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in such proceedings.
(2) The Court must seek to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any rule."
108 These provisions are directed to procedural matters, and are not intended to impact upon substantive rights: cf Griffin v Sogelease Australia Ltd and Others (2003) 57 NSWLR 257 at 264. It would not be open to the Court to direct, under these provisions, that the plaintiffs give up their right of confidentiality. This is recognised by the First Defendant in the form of the second order which he seeks. That second order seeks a stay of the proceedings until the plaintiff provides permission for Doctors Sholler and Lewis to discuss Ankur's treatment with the legal representatives of the First Defendant. The second order thus leaves it to the plaintiffs to decide whether or not they will provide any such authority.
109 Part of the reasoning concerning why the doctor-patient confidentiality between Ankur and his treating doctors was not waived by the mere fact of commencement of proceedings is that, as outlined above, the Court's procedures for ascertainment of such confidential information might (putting it at its lowest) be adequate to enable the First Defendant to have a fair opportunity of defending himself, while that obligation of confidentiality remained on foot. But what is to happen if those procedures prove inadequate for that purpose?
110 The Court has an inherent jurisdiction to stay proceedings if continuance of them would be unjust: Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71 at 76; Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 at 344-5; Walton v Gardiner (1993) 177 CLR 378; Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 esp at 39, 56-58; Evers v Firth (1986) 10 NSWLR 22 at 26; Dwyer v National Companies & Securities Commission (1988) 15 NSWLR 285 at 287; Williams and Others v Spautz (1992) 174 CLR 509. And one possible circumstance where that might happen is where a party to litigation was using a right of confidentiality to keep hidden information which ought be available for the fair trial of the action.
111 If a litigant satisfies the court that a fair trial of the action cannot be had while the opposing litigant insists on a right to keep information confidential, the court can stay the action until that right of confidentiality is no longer insisted on. The onus is on the party who seeks such an order to establish a prima facie case that there actually is information which is being kept secret from that party, that while it is kept secret a fair trial of the action will not occur, and that the circumstances are appropriate to exercise the significant power of granting a stay.
112 If the only relevant information in the treating doctor's head is information which is also in his or her records, and those records are available for the purposes of the trial, there is nothing relevant in his or her head which is being kept secret from the other party to the litigation. Thus, the applicant for a stay, who has had the doctor's records produced, needs to make out a prima facie case that the doctor has relevant information not contained in those records.
113 If it were to be established that there was a prima facie case that a treating doctor had information not contained in his or her records, and that the plaintiff insisted on maintaining confidentiality concerning that information, there would still be a question of whether that meant that a fair trial would not occur. Apart from in the unlikely event that the treating doctor had made clear that it was only his or her obligation of confidentiality which was keeping him or her from talking with the defendant's lawyers, it would not necessarily follow that, if the plaintiff were to waive confidentiality, the treating doctor would agree to talk to the defendant's lawyers. Quite apart from any questions of confidentiality or medical ethics, a treating doctor might be unwilling to talk to the defendant's lawyers because he or she thought it would negatively affect the ongoing doctor-patient relationship, because he or she did not want to get involved in someone else's dispute, or simply because he or she preferred to spend time in some way other than talking to lawyers.
114 Whether it would be appropriate to impose a stay unless confidentiality was waived might be affected by what basis there was for believing an express waiver of the obligation of confidentiality would result in the defendant actually getting information from the treating doctor. A more likely result, however, is that the court would take the view that a trial would be unfair if held in circumstances where there was real doubt about whether the plaintiff's insistence on maintaining a right of confidentiality was the cause of relevant material being kept from the defendant prior to the trial, and about whether the information was the sort of information the defendant would be able to cope with if revealed in evidence in the course of the trial. If on the other hand the plaintiff waived confidentiality, and the treating doctor then declined to co-operate with the defendant's lawyers, the trial would be a fair one because, even though the defendant still could not get the information without calling or cross-examining the doctor at the hearing, it was not the plaintiff who was preventing the information from being made available prior to the trial. In that situation, the cause of the information not being available prior to the trial would be the doctor exercising the right any citizen has to refuse to meet and talk with someone who wants to meet and talk with them.
115 If there was information not contained in the doctor's records which was relevant but of marginal importance to the case, the Court might decide that there could still be a fair trial. To be able to decide this, the Court would need to know the nature of the information sought to be kept secret, and be able to assess its significance for the trial. As well, procedural devices of limited disclosure of the information to legal advisers, different to those who would run the main case, might need to be put in place to ensure the argument occurred with procedural fairness.
116 If it was decided a fair trial could not occur while a right of confidentiality was insisted on, it would be inevitable that the Court would also decide it was appropriate to stay the action, even though preventing a plaintiff from litigating a claim is a serious thing to do.
117 It is not sufficient to grant a stay that a party would like the opportunity of fishing to see whether there might be any information relevant to the case which is kept from him or her by reason of the confidence. Nor is it sufficient that the party would like a trial run at cross-examination without the risk of obtaining unfavourable answers that always goes with cross-examining a witness with whom counsel has not previously conferred.
118 When I say that a defendant seeking a stay must establish that there is a prima facie case, I am referring to the fact that the defendant bears the legal onus of proof, but is seeking to prove that information of a particular type is known to the treating doctor, when the defendant is not in a position to know fully what it is that the treating doctor knows. Thus, if the defendant can produce sufficient material from which an inference can be drawn that the treating doctor has such information, that can suffice to discharge the onus of proof: Apollo Shower Screens Pty Ltd and Another v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561. A "prima facie case" has been held to be required in order to prove that communications between lawyer and client were for an improper purpose (and hence that legal professional privilege did not apply - The Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500 at 516, 517, 525; Re Moage Ltd (in liq); Sheahan v Pitterino and Others (1998) 26 ACSR 726 at 733-734.), and also to establish that circumstances have arisen which make an obligation of confidence inapplicable: A and Others v Hayden (1984) 156 CLR 532 at 547; AG Australia Holdings Ltd v Burton & Anor [2002] NSWSC 170; (2002) 58 IPR 268; (2002) 58 NSWLR 464 at [198] - [202].
119 When a decision is being made whether litigation should be stayed unless a right of confidence is expressly waived in certain respects, I do not see that any different questions are involved to those involved in deciding that the stage has been arrived at, in that particular piece of litigation, where it has become inconsistent for the plaintiff to maintain the right of confidentiality in those respects, and also to press on with the litigation. That is to say, I do not see that any different questions are involved to those involved in deciding that there has been a waiver of the right of confidentiality, in those respects. Thus it is not surprising that the same standard of proof applies for when circumstances have arisen to make an obligation of confidence inapplicable, and also for when circumstances have arisen such that a stay of litigation is appropriate for the reasons now under consideration.
120 In McGrory v Electricity Supply Board (Supreme Court of Ireland, 24 July 2003, unreported), discussed at [40] above, a stay was granted apparently on the basis that the information to be obtained from the conference between doctors was "relevant material which in any event will be available at a later stage of the proceedings". There was no examination of what information the treating doctor might have which was not obtainable through ordinary court processes, or what justification there was for the serious step of staying an action. I respectfully decline to adopt that approach.
121 For the purpose of seeing whether a stay ought be ordered in the present case, it is necessary to look, in some detail, at what the evidence establishes concerning the likelihood that the treating doctors have information obtainable only through questioning them.