La Valette v Chambers-Grundy

Procedural matters

1. The first defendant emphasises that there have been a number of attempts by the plaintiff to obtain documents of the kind now sought in these proceedings. The first defendant says that, there having already been three notices to produce, two discovery orders, oral examination of the first defendant, 16 informal requests and multiple subpoenas issued by the plaintiff, the present further attempt to obtain documents is an abuse of process.
2. For present purposes, it is relevant to note that, on 9 August 2018, the plaintiff filed a notice of motion seeking production of documents from the first defendant. That relief was in part opposed. Some agreement as to production of certain documents or categories of documents was, however, reached; resulting in consent orders made on 21 September 2018.
3. On 14 and 21 September 2018, the notations to orders made by Lindsay J record that the plaintiff was given an opportunity to consider whether to pursue an application for preliminary discovery. It is noted by the first defendant that the plaintiff did not pursue such an application. The plaintiff had already by then sought leave on a number of occasions to issue subpoenas, including orders sought and made on 28 April 2017 to issue subpoenas to eight entities; and orders sought on 25 May 2017 and granted on 26 May 2017 for leave to issue subpoenas on six entities.
4. Lindsay J heard the dispute as to the balance of the production that had been sought in the August 2018 notice of motion. On 5 October 2018, his Honour delivered reasons for judgment in relation to that application (Re Estate Grundy (No. 2) [2018] NSWSC 1495 (Re Estate Grundy (No. 2))) and made orders for the production of documents, relevantly, as follows: (1) ORDER that the first defendant produce to the plaintiff no later than 30 October 2018 the following documentation so far as it is within her possession, custody or control (or within the possession, custody or control of any corporation or other entity controlled by her): (a) the deceased's treating doctors' records indicating the medical condition of the deceased from 2008 when he was first placed under the care of Dr Cummings through to 6 May 2016. (b) a copy of the deceased's death certificate. [my emphasis]
5. The plaintiff's solicitor has deposed to what next transpired in relation to the production of documents (see the affidavit sworn 29 August 2019 of Mr Christiaan Roberts, and the supplementary affidavit sworn by him on 2 September 2019).
6. On 30 October 2018 and 13 November 2018, the first defendant produced certain documents pursuant to the consent orders made on 21 September 2018 and Lindsay J's 5 October 2018 orders. (Those documents included correspondence, to which I will refer in due course, between the first defendant and others, the content of which has apparently fuelled the suspicions of the plaintiff as to the circumstances in which access to her father in the period from 2013 was denied. The complaint by the plaintiff is that no medical records regarding the deceased were then produced - nor have they later been produced other than in relation to the deceased's Australian doctors.)
7. On 6 March 2019, the solicitors acting for the first defendant (Diamond Conway Lawyers) informed the plaintiff's solicitors that the first defendant "did not have a presently enforceable right to obtain the documents from the deceased's treating doctors".
8. On 14 March 2019, Lindsay J ordered (without, it is said, objection on the part of the defendants) that the plaintiff be granted leave to issue subpoenas to the medical practitioners in question. However, those orders do not seem to have been executed (the plaintiff describing that process as not having gone smoothly). As I understand it, there was a difficulty expressed by the Registry as to the basis on which the subpoenas could be issued to the overseas medical practitioners and clinics (and, it appears, at some stage the plaintiff realised that it would be necessary for any such subpoenas to be coupled with letters of request of the kind now sought).
9. On 22 May 2019, apparently following a request on behalf of the plaintiff for permission to cross-examine the first defendant regarding the production of medical records, the first defendant (through her Counsel) agreed to instruct her solicitor to write to the deceased's treating doctors seeking production of the medical records. It does not appear that this satisfied the plaintiff, as the plaintiff proceeded to press for orders for such letters to be written.
10. On 21 June 2019, Lindsay J made orders that letters be sent, addressed to the medical practitioners, and that the defendants provide the solicitors for the plaintiff within a reasonable time with all documents produced in answer to those letters, as and when the documents were received. The orders so made, in the context of other procedural orders including the referral of the matter to the Registrar for the purposes of steps being taken towards fixing a date for the final hearing of the proceedings on the basis that seven days should be allowed for the hearing, were in terms that: (1) ORDER that the defendants, no later than 5pm today (21 June 2019), send to each of the deceased's treating doctors (identified in paragraph 6 of the letter dated 19 June 2019 addressed by Diamond Conway Lawyers to Roberts & Partners Lawyers, reproduced as Annexure B to the affidavit of Vanessa Marquez Vallejo sworn 19 June 2019) a letter in substantially the same form as the draft letter identified in paragraph 6 of the affidavit. (2) ORDER that the defendants provide to the solicitors for the plaintiff, within a reasonable time, all documents produced in answer to those letters, as and when such documents are received.
11. On 21 June 2019, Diamond Conway Lawyers sent letters to seven treating doctors and hospitals. Although evidence filed by the plaintiff on the present application is to the effect that certain of those treating doctors and hospitals did not receive or may not have received the correspondence, as to which see below, there is no basis on which to doubt the evidence of the first defendant's solicitor that the requisite letters were duly sent.
12. As to one of the overseas doctors (Dr Cummings), there is in evidence a copy of an email dated 10 July 2019 from Dr Cummings to Mr John Stinson (a partner of Diamond Conway Lawyers), indicating that: the deceased was never registered as a patient at the Cleveland Clinic in Nevada; that visits with the deceased were not recorded in the medical record there; but that there are "many" records of the deceased's stroke care at the Cleveland Clinic in Florida and records of the deceased's examinations by Dr Cummings at UCLA and that a separate request for the UCLA records would be needed to obtain those records. Pausing here, the plaintiff says that the 10 July 2019 email is arguably inconsistent with correspondence from Dr Cummings in 2013, there referring to a letter dated 30 July 2013 from Dr Cummings to the first defendant, in which Dr Cummings states that "I have been caring for Mr. Reg Grundy since 2008. I first cared for him while a Professor of Neurology at UCLA and I continue to care for him in my new position as Director of the Lou Ruvo Center for Brain Health at Cleveland Clinic, Las Vegas, Nevada". Whether or not that is the case cannot be tested based on the material presently before me - it may, for example, be that Dr Cummings' reference to the Nevada clinic was simply a reference to a position by then occupied by him and that the deceased's medical records remained at all relevant times at UCLA, where the deceased was registered as a patient, notwithstanding that Dr Cummings was also now practising in Nevada. In any event, nothing here turns on the perceived discrepancy in the correspondence from Dr Cummings. More relevant is the fact that Dr Cummings appeared to be indicating that there were some medical records in existence but that they would need to be obtained from UCLA.
13. On 1 August 2019, Diamond Conway Lawyers sent a letter by facsimile transmission to UCLA requesting records and informed the plaintiff's solicitor of the making of that request. (I interpose here to note that this would seem on its face to be a step taken in compliance with the order made by Lindsay J for the production of medical records within the first defendant's control.)
14. On 29 August 2019, Diamond Conway Lawyers served on the plaintiff's solicitors medical records relating to two Australian doctors (Professor Stricker and Dr Scott Ingram). The plaintiff does not seek any further documentation from those doctors. Rather, the plaintiff's complaint is that she has still received no medical records held by the doctors located overseas; and that there was no indication of any other steps having been taken by either the first defendant or the first defendant's solicitors to "follow up" production.
15. Mr Roberts has deposed that, from about 17 August 2019, he commenced contacting the treating doctors and hospitals regarding the status of receipt of the request for production of medical records. Mr Roberts has prepared a summary of the results of his enquiries (see the table contained in his affidavit sworn 29 August 2019). Mr Roberts has deposed that three of the medical practitioners or centres (Dr Rahimi, Dr James Sherman and UCLA) responded to the effect that they had not received letters from Diamond Conway Lawyers; and that at least three of the overseas practitioners/practices (Cleveland Clinic, Dr Sherman and UCLA) indicated that requests in writing or authorisation were required; and a fourth, Dr Rahimi, indicated that he would not release records without a US Court subpoena.
16. Mr Roberts has deposed to having obtained a release form for UCLA, a copy of which form is annexed to his affidavit, and to having also located an application for records form referable to the Cleveland Clinic which he says identifies that an executor of an estate is empowered to request and receive the records.
17. As adverted to already, the first defendant is the named executrix and has obtained a grant of probate in New South Wales. Prima facie, therefore, the first defendant would be in a position to complete the requisite application for the Cleveland Clinic records and presumably also for the UCLA records.

Plaintiff's submissions

1. The plaintiff's complaint is that her efforts to obtain the medical records have been "stymied" for nearly a year.
2. The plaintiff maintains that the relevance of the documents sought to be obtained by way of the orders now proposed has already been demonstrated (referring to the judgment of Lindsay J on 5 October 2018 - Re Estate Grundy (No. 2)), on the basis that his Honour accepted that she should be able to test whether the deceased made conscious decisions to limit the plaintiff's entitlements and the factual context in which those decisions were made; and hence that his Honour found that there was a legitimate forensic purpose in the plaintiff seeking these documents. In this regard, the plaintiff refers to the following in his Honour's 5 October 2018 reasons (which the plaintiff accepts records her contentions, not findings as such): 19. In response to concerns about the nature and scope of the further disclosure sought by the plaintiff, and in order both to demonstrate the plaintiff's proper forensic purpose and to allay fears about her requests for documentation being characterised as an abuse of process, senior counsel for the plaintiff made submissions to the following effect (elaborating her written submissions) about the nature of the issues to be decided upon a final hearing of her family provision claim: (a) In the last decade or so of the life of the deceased, significant decisions were made by him, or on his behalf, affecting the provision made by the deceased for the plaintiff during his lifetime and, by way of estate planning, his testamentary provision for her. (b) Those decisions were made in the context of: (i) the deceased's declining mental health. (ii) circumstances in which, as the first defendant contends in the principal proceedings, there was an estrangement between the deceased and the plaintiff leading to his reduction of provision made for her. (iii) animus on the part of the first defendant against the plaintiff. (c) In the last years of the deceased's life, under the influence of the first defendant, the deceased reduced the provision he had made, and proposed to make, for the plaintiff. (d) At the same time, the first defendant restricted the plaintiff's access to the deceased. (e) The plaintiff submits that, if the first defendant contends (as she does) that the deceased made conscious decisions to limit the plaintiff's entitlements, the plaintiff should be able to test whether such decisions were in fact made and the factual context in which they were made. 20 Testing the plaintiff's application for further disclosure, by reference to particular categories of documents, against the criteria identified, and taking into account the parties' submissions generally, I make the following orders: [the relevant orders there being set out]
3. Although not directly addressed in terms in his Honour's reasons, the plaintiff says that the finding of legitimate forensic purpose (or relevance) is to be gleaned from the making of the orders in question.
4. The plaintiff's complaint is that, while it is clear that the first defendant had contact with Dr Cummings, Dr Sherman, Dr Rahimi and Dr Campbell, it is not evident from what has been produced by the plaintiff what (if any) information had been relayed to such doctors by the first defendant regarding the plaintiff's relationship with the deceased (which would have informed such doctors of the first defendant's view of the plaintiff and her relationship with her father), which the plaintiff says was then the catalyst for such doctors to write letters that were used by the first defendant to deny the plaintiff access to her father.
5. It is submitted that some of the material produced has revealed that the first defendant had, over the period from June 2013 to the time of the deceased's death, been "well able to communicate with the doctors and elicit various letters from them", including letters acknowledging the first defendant's authority to deal with such doctors and her decision-making on behalf of the deceased; and that the first defendant had at least in one instance been involved in the drafting of a letter from Dr Sherman which it is said was then used by the first defendant to deny the plaintiff access to her father "purportedly on medical grounds".
6. By way of example, reference is made to the following: an email dated 12 July 2013 from the first defendant to Mr Wright (a retired lawyer and adviser to the first defendant) and Ms McIntosh (a financial adviser to the first defendant), in which the first defendant refers to "follow[ing] up" with letters from Jim (presumably Dr Sherman) and Jeff (presumably Dr Cummings); an email dated 13 July 2013 from the first defendant to Mr Wright, in which the first defendant refers to a conversation with Jim and a letter said to have been sent by him to Mr Wright; an email dated 15 July 2013 sent by the first defendant to Mr Wright and Ms McIntosh, attaching a document written by the first defendant and a letter from Dr James Sherman; and an email dated 15 July 2013 from the first defendant to Mr Wright, stating that "[h]owever, I think that to have Jim's letter and also Jeff's in our arsenal is desirable".
7. It is submitted that the evidence reveals that the first defendant has an ongoing relationship at least with Dr Cummings, by reference to the 10 July 2019 email from Dr Cummings to Mr Stinson to which I have referred above, which commences with the words "Hi John, I am the neurologist who works with Joy Chambers-Grundy..." and concludes with an expression of willingness to assist.
8. Thus, the plaintiff submits that the medical records should be within the first defendant's power to procure; and should be provided to the plaintiff's representatives to permit the just, quick and cheap disposition of the real issues in dispute in the proceedings.
9. The plaintiff argues that there is power to make the orders that are here sought: as to prayers 1-3 (leave to issue the notice to produce and completion of forms requesting the production of documents) pursuant to ss 61, 62 and/or 68 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) and r 2.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR); as to prayers 4-18 (service of subpoenas overseas and letters of request) pursuant to one or more of: r 11.8AB of the UCPR (service of any document other than an originating process outside Australia); r 11A.4 of the UCPR (application for request for service abroad under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (15 November 1965) (1965 Convention)); and ss 6(1)(c) or 20(1)(c) of the Evidence on Commission Act 1995 (NSW) (Evidence on Commission Act) pursuant to r 24.5 of the UCPR (application for the issuance of a letter of request under the provisions of that legislation); and/or the inherent jurisdiction of the Court and the power pursuant to the 1970 Convention.
10. In that regard, the plaintiff notes that service of subpoenas abroad is authorised pursuant to the 1965 Convention, which Convention entered into force on 1 November 2010 for Australia; and is in force in the United States of America and in Bermuda. However, it is accepted that, while the 1965 Convention facilitates service of documents, it does not compel production or facilitate enforcement.
11. The plaintiff notes that the 1970 Convention facilitates the transmission and execution of letters of request. The 1970 Convention is in force in Australia and the United States of America but it is not in force in Bermuda. Thus, the plaintiff concedes that there is some doubt as to the power to issue letters of request of the kind sought.
12. The plaintiff says that the concern that arises in many cases (that the request for production of documents is a form of pre-trial discovery rather than for the purpose of obtaining evidence for use at the trial) is not applicable here and submits that the orders sought in the notice of motion should be made to facilitate the production of documents (as ordered by Lindsay J to be provided by the first defendant) in order to facilitate the ability of the plaintiff to test the first defendant's evidence at the hearing.
13. For the purposes of deciding whether it is in the interest of justice to make such an order pursuant to s 6(1)(c) of the Evidence on Commission Act, the plaintiff submits that this is satisfied in the present case because: what is sought is not physical presence of the overseas medical practitioners giving oral evidence in the proceedings, but documentary evidence in the form of their medical reports and communications with the first defendant; the evidence is material to the issues to be tried in the proceedings; and that the determination of Lindsay J on 5 October 2018 clearly supports the conclusion that justice will be better served by the making of an order.
14. Finally, as to the orders sought to compel the first defendant to complete applications for the release of the documents, it is noted that, in now discontinued related proceedings by Mr Simon Russell against the first defendant relating to the deceased's estate, orders were made on 15 February 2019 for the first defendant to complete necessary documents to access medical records. The plaintiff further contends that there is an obligation (on the parties and their legal representatives) under s 56 of the Civil Procedure Act, where orders have been made "to see that the orders have some practical benefit to them so that the real issues in dispute in the proceedings are facilitated in a just, quick and cheap way" (see T 11.29) (it being suggested that there was an obligation on the part of the plaintiff and/or her legal representatives not simply to issue the letters the subject of the orders made by Lindsay J on 21 June 2019 but to "follow up" those requests for release of the documents).

First defendant's submissions

1. The first defendant accepts that the issues raised in the proceedings include: the nature of the relationship between the plaintiff and the deceased; the financial support given to the plaintiff by the deceased during his lifetime; and the adequacy of the provision given under the last Will. The first defendant also accepts, as adverted to earlier, that the role that she played in 2013 when the plaintiff was denied access to her father has "apparent relevance" in the proceedings because the first defendant relies on the estrangement between father and daughter as a factor relevant to what provision was adequate and proper in all the circumstances; though the first defendant emphasises that there is not an issue as to testamentary capacity raised in these proceedings.
2. The first basis on which the orders sought are opposed is that the present application is an abuse of process, the first defendant noting that: the plaintiff was given, but did not take up, an opportunity to seek preliminary discovery; and that there have been numerous requests for the provision of documents, as well as orders sought and made in relation to the issue of subpoenas. The first defendant says that the chronology of requests reveals that there have been 16 requests in correspondence by the plaintiff for documents and that, by consent, discovery of documents by the first defendant was ordered on a range of categories on 21 September 2018 (with which it is said there was compliance); as well as other orders made for discovery. The first defendant points to the fact that Lindsay J noted (at [18] of Re Estate Grundy (No. 2)) the course taken by the plaintiff in proposing, and abandoning, a claim for "preliminary discovery" and then later persisting in a claim for discovery. It is noted that the plaintiff has issued notices to produce dated 6 June 2017, 15 June 2017 and 27 June 2017 (leading, it is said, to the making on 30 June 2017 by Lindsay J of orders placing a "moratorium" on the issuing of subpoenas and notices to produce).
3. Reference is made to the affidavit of the first defendant's solicitor, Ms Vanessa Marquez Vallejo, sworn 3 September 2019 in which evidence of compliance with the 21 June 2019 order made for letters to be sent to the medical practitioners was set out.
4. As to the proposed notice to produce (prayer 1 of the notice of motion), it is submitted that this is an abuse of process, insofar as it represents "yet another invocation of the Court's compulsory processes"; amounting to an application for further discovery in circumstances where there have been three notices to produce issued to the first defendant, orders in the nature of discovery by the defendants, and an oral examination of the executrix which consumed most of the day. It is further submitted that this is a fishing expedition. It is said that the documents called for in the proposed notice to produce are already the subject of a discovery category and that the plaintiff now wants to call for more recent documents to discover whether the defendant has interfered with the process of writing to doctors insofar as the notice goes to matters which (possibly) took place after the date of the death of the deceased. It is submitted that the proposed notice is more akin to further discovery or notice under r 21.10 of the UCPR because it calls for a range of things ("all documents ... which record communications"), rather than calling for a specified document or thing as required by r 34.1 of the UCPR.
5. As to the relief sought in prayers 2 and 3 of the notice of motion dated 30 August 2019 (that the first defendant complete and lodge application forms of a particular kind "or such other documents as is required" with a view to obtaining documents from the Cleveland Clinic and UCLA Health Information Management Services in the United States of America), the first defendant does not accept that the plaintiff has established that there is utility to this process (but concedes that she would not be prejudiced by the completion of a form, and forwarding it by post to the named recipients, should it be necessary).
6. As to the leave is sought under rr 11.8AB and 11A.4 of the UCPR to issue subpoenas to overseas doctors for documents recording or indicating the deceased's medical condition in the period 1 January 2008 to 6 May 2016, leaving aside the question of jurisdiction to issue letters of request, it is submitted that this period is "well outside the temporal scope of the plaintiff's 2013 attempt to make contact with her father" and is plainly an exercise in fishing. It is said that the balance of the proposed subpoenas is manifestly too wide to be relevant to the estrangement issue (in particular insofar as the documents sought relate to medical records in general). Further, the first defendant submits that the Court would be "slow" to give leave to serve subpoenas outside the jurisdiction. Complaint is also made as to the breadth of the request for medical records - in particular, that it is not confined to records as to the deceased's cognitive ability and extends over the whole of the period from the time of his stroke whereas the denial of access to the deceased on medical grounds was not until mid 2013.

Determination

1. Turning first to the proposed notice to produce, this seeks the production of documents being communications by the first defendant or on her behalf with the deceased's medical practitioners in the period well after the deceased's death. I am not persuaded that there is a legitimate forensic purpose for such a notice to produce. The relevance ascribed to medical records of the deceased in the period before his death goes to the issue as to the alleged estrangement between the plaintiff and the deceased (and the first defendant's role in the events from 2013 when the plaintiff sought and was refused access to the deceased). It seems to me no more than a fishing expedition for the plaintiff to be seeking correspondence between the deceased's medical practitioners and the first defendant after the deceased's death. I consider the most useful description of a fishing expedition to be that which I have previously quoted from Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254 (per Owen J): A "fishing expedition", in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. (See my decisions from this year in Rinehart v Rinehart [2019] NSWSC 759; Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410; Wollongong Coal Ltd v Gujarat NRE Properties Pty Ltd (No 2) [2019] NSWSC 758; and Anderson v Patersons Securities Ltd (No 2) [2019] NSWSC 853.)
2. Accordingly, I do not propose to grant leave for the issue of the notice to produce.
3. As to the application for a direction that the first defendant lodge application forms or such other documentation as is required for the delivery up to the Supreme Court of New South Wales of the deceased's medical records held by: the Cleveland Clinic and UCLA Health Information Management Services; and that the first defendant file and serve an affidavit recording her compliance with such a direction (prayers 2 and 3 of the notice of motion), I see the grant of such relief as unnecessary for a number of reasons.
4. First, and foremost, there is already an order that the first defendant produce "so far as it is within her possession, custody or control (or within the possession, custody or control of any corporation or other entity controlled by her)", the deceased's doctors' records "indicating the medical condition of the deceased from 2008 when he was first placed under the care of Dr Cummings through to 6 May 2016" (see Order 1 of the orders made by Lindsay J on 5 October 2018).
5. That order is not limited in terms to Dr Cummings' records. The reference to Dr Cummings is in the temporal context - of setting the commencement of the period in respect of which records must be produced (i.e., from the date that the deceased was first placed under Dr Cummings' care). Medical records of other treating doctors after that time would fall within the terms of the order. It is incumbent on the first defendant to comply with that order but I am not persuaded that it is appropriate at this stage to order any affidavit by the first defendant as to her compliance with such an order.
6. Insofar as complaint is now made by the first defendant as to the breadth of the requirement for production of medical records (i.e., that this is not limited to records relating to the deceased's cognitive ability and extends back to 2008), no such limitation was placed on the order when it was made by Lindsay J and I am not prepared to revisit his Honour's decision in that regard. There has been nothing to suggest that it is oppressive for the first defendant to be required to produce all medical records and not simply records of the deceased's mental condition or cognitive ability.
7. Importantly, as I emphasised at the hearing of the present application, the order requires the first defendant to produce documents within her "control". In Barkley v Barkley-Brown [2010] NSWSC 746, Ball J observed (at [14]) that (in the context of answering a subpoena) documents are in the possession or control of a person if the person can in fact produce the documents requested "either because the person has possession of the documents or because the person is able to obtain possession of them".
8. If, as executrix of the deceased's estate, it is within the first defendant's ability to procure the release of medical records from the overseas medical practitioners and clinics in question, then those documents are within her control and she has an obligation to do what is reasonably necessary to obtain their release (or, if for some reason that be oppressive, to seek dispensation from that order). It is not necessary to resort to s 56 of the Civil Procedure Act in order to find the source of the first defendant's obligation in this regard.
9. Therefore, if there is a simple application form that can be completed by the first defendant in order to request the release of records from UCLA Health Information Management Services or the Cleveland Clinic, in my opinion, it is incumbent on the first defendant to complete it in order to comply with the obligation for production of documents in accordance with the orders made on 5 October 2018 by Lindsay J; and any further direction in that regard is otiose.
10. Second, the evidence now provided to the Court (namely the affidavit sworn 30 September 2019 of Ms Marquez Vallejo), pursuant to the liberty granted at the time of the hearing of the present application, makes clear that the relevant medical release forms have now been completed and forwarded to the Cleveland Clinic and UCLA Health Information Management Services. In those circumstances, again, a direction of the kind sought is unnecessary.
11. Finally, as to the application for the issue of subpoenas coupled with letters of request, the position is more complicated.
12. As a matter of comity, an application for leave to serve a subpoena to a recipient in a foreign jurisdiction, where the Court lacks power to enforce the subpoena, will ordinarily be refused. The utility of such a subpoena is correctly regarded as questionable where the court is unable to sanction non-compliance (see MacKinnon v Donaldson Lufkin and Jenrette Securities Corp [1986] Ch 482; [1986] 1 All ER 653; [1986] 2 WLR 453 and Aetna Pacific Securities Ltd v Hong Kong Bank of Australia Ltd (Supreme Court (NSW), Giles J, 29 April 1993, unrep)). As observed in Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 at 553, the authority for the court to give leave to serve a subpoena to a recipient in a foreign jurisdiction "should be construed consistently with the established criteria of international law with regard to comity".
13. It is not suggested that there is power to enforce a subpoena against a party located in the United States of America or in Bermuda. So, for example, in Gloucester (Sub-Holdings 1) Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1419 (Gloucester), White J (as his Honour then was) refused an application for leave to serve a subpoena in Hong Kong, citing issues with comity. (While the difficulty identified in that case as to the fact that service under the 1965 Convention was not personal service whereas subpoenas are required to be served personally, has been overcome by the changes to the UCPR - r 11.8AB, this does not address the issue as to enforcement of a subpoena served in accordance with that rule.) The inability to enforce a subpoena served overseas remains an important consideration in determining whether to grant leave to issue a subpoena to an overseas recipient.
14. This is where the letter of request procedure becomes relevant.
15. Historically, there is facility for a court in one country to issue a letter of request to a foreign court for the purposes of civil proceedings to assist the court and the parties to them in arriving at a fair and just determination of their civil litigation (see for example Gredd v Arpad Busson [2003] EWHC 3001 (Gredd v Arpad Busson) at [27]). Such a procedure is a request to the foreign court for assistance; it does not involve the court of one country making an order in respect of parties or witnesses of another country (as was made clear in Panayiotou v Sony Music Entertainment (UK) Ltd [1994] Ch 142 (Panayiotou) at 150A per Sir Donald Nicholls VC).
16. The plaintiff has identified two possible sources of power for the issuance of letters of request in the present case, namely: within the inherent power of a superior court of record; and pursuant to the 1970 Convention.
17. As to the first, there is doubt in the authorities as to whether there is power within the inherent jurisdiction of the court to issue a letter of request seeking assistance in respect of the production of documents under subpoena (as opposed to the taking of evidence on commission).
18. In Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (1987) 14 FCR 461 (Elna Australia), Gummow J, then sitting in the Federal Court, considered the issue (having declined an application under the Evidence Act 1905 (Cth)). His Honour doubted that English superior courts exercising common law jurisdiction had power to issue letters rogatory (except by statutory jurisdiction), noting that it was only Chancery (and the Court of Exchequer on its equity side) that claimed and exercised an inherent power to issue commissions and appoint examiners both in aid of suits in its exclusive jurisdiction and in aid of actions at law (see at 466). His Honour said (from 465) that: … the applicant invoked what was described as the "inherent jurisdiction" of the court. In Parsons v Martin (1984) 5 FCR 235 at 240-241, the Full Court explained that: (a) the expression "inherent jurisdiction" has come to be used to describe the power a court may have independent of statutory authority; and (b) in Australia there is in truth no court of unlimited jurisdiction in this sense. There are no such courts because federal and territory courts are created by Parliament (or in the case of the High Court provided for in the Constitution itself), and State courts by or pursuant to Imperial, Colonial or State legislation, and none of these courts has jurisdiction embracing the totality of the jurisdiction of the others. … One consequence of the judicature system was to empower the Supreme Court of Judicature to provide for the taking of evidence abroad both on interrogatory and viva voce: Hume-Williams and Macklin (supra), pp 7-21. It follows from the developments I have outlined that a result of the legislation which established this Court as a court of equity and a superior court of record with "judicature" powers, was the bringing to the Court of powers of the kind expressed in O 24 of the Rules of this Court. However, those powers do not, in my view, authorise an order of the kind sought by the applicant on this motion. The Chancery and judicature system powers plainly were directed to the taking of evidence. As I have discussed earlier in these reasons, the order sought is of a different character.
19. In Panayiotou, the Court's power to issue a letter of request was seen as more broadly based, stemming from jurisdiction inherent in the court to perform those acts which the court must be able to perform to maintain its character as a court of justice (at 149H). There, Sir Donald Nicholls VC referred to comments of Lord Diplock in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 at 977. The Vice Chancellor also referred to comments of Lord Ellenborough CJ in Amey v Long (1808) 9 East 473 at 484 suggestive that the right to compel production of documents is essential to the constitution of a court of common law (without apparent reference to statutory jurisdiction). His Lordship said (at 150): It is important to keep in mind that when a letter of request is issued, the English court is doing no more than make a request to a foreign court for assistance. It is not making an order. It is not making an order addressed to a foreign court or to witnesses. Further, the subject matter on which assistance is sought, the obtaining of evidence, is one over which the court has long exercised close control. This is a subject peculiarly within the court's own control. Thus, the process by which the court compels the attendance of witnesses, or compels the production of documents as evidence, is a process whose source is the court's own inherent powers. R.S.C., Ord. 38, rr. 14 to 19 regulate the form of subpoenas, and the way they should be issued and served and so forth; those rules do not create the jurisdiction. Specifically with regard to a subpoena to produce documents (duces tecum), Lord Ellenborough C.J. observed as long ago as 1808 in Amey v. Long (1808) 9 East 473, 484; "The right to resort to means competent to compel the production of written, as well as oral, testimony seems essential to the very existence and constitution of a court of common law, which receives and acts upon both descriptions of evidence, and could not possibly proceed with due effect without them. And it is not possible to conceive that such courts should have immemorially continued to act upon both, without great and notorious impediments having occurred, if they had been furnished with no better means of obtaining written evidence than what the immediate custody and possession of the party who was interested in the production of it, or the voluntary favour of those in whose custody the required instruments might happen to be, afforded. The courts of common law, therefore, in order to administer the justice they have been in the habit of doing for so many centuries, must have employed the same or similar means to those which we find them to have in fact used from the time of Charles the Second at least ..." Against this background there is nothing surprising or remarkable in the idea that the English court should choose to communicate with a foreign court, and seek its assistance in the production of documents which, had they been in England, could properly have been made the subject of a subpoena issued by the English court. The English court would not normally embark on such a course unless there was reason to suppose the foreign court would be receptive to the request. Now there is the Hague Convention. The courts of the United States have obligations to provide assistance to an English court, in the same way as under the Evidence (Proceedings in other Jurisdictions) Act 1975 the English court has obligations to provide assistance to an American court. It cannot be right that, in the absence of legislation or a rule, the English court is unable to take advantage of this situation when necessary for the purpose of doing justice in a case currently before the English court. That really would make no sense at all.
20. As the plaintiff has noted, the authors of Dicey, Morris and Collins on The Conflict of Laws (15th ed, 2012, Sweet & Maxwell) have referred to Panayiotou (at 298) without apparent criticism.
21. In Gloucester, his Honour said (at [62]) after referring to the disconformity between the comments of Gummow J in Elna Australia and of the Vice Chancellor in Panayiotou, and having noted that in McGrath as Liquidators of HIH Insurance Ltd [2008] NSWSC 780 and McGrath as Liquidators of HIH Insurance Ltd [2008] NSWSC 881, Barrett J (as his Honour then was) had issued letters of request to the courts of England and Wales and Hong Kong for the issue of examination summonses but did so pursuant to the power conferred in corporations matters by s 581(4) of the Corporations Act 2001 (Cth): It would be inappropriate for me to express a view as to whether this Court does have jurisdiction to issue a Letter of Request to the Supreme Court of Hong Kong for the production of documents pursuant to the Hague Evidence Convention. Although I indicated that I would be willing to accede to such a request, I did so in the course of argument on the assumption that there was jurisdiction to do so, as the defendant's argument also assumed, without having occasion to consider the question. That question would only need to be considered if an application is made by the defendant for the issue of such a Letter of Request. I express no view on that question.
22. His Honour later went on to note that: 64 Even if this Court does not have jurisdiction to issue such a Letter of Request pursuant to the Hague Evidence Convention either under the Evidence on Commission Act 2006 or in the Court's inherent jurisdiction, that does not mean that UCPR, r 11.5 provides the necessary jurisdiction. The rule should be construed in accordance with principles of international law that include principles of comity that respect the sovereignty of foreign States that would be infringed by the purported exercise by this Court of the judicial power of New South Wales in those foreign States. That is so even if there is no power for this Court to make a request pursuant to the Hague Evidence Convention to the Central Authority of another Convention country to order the production of documents for proceedings in this Court. Assuming, without deciding, that neither the Evidence on Commission Act 2005, nor the inherent jurisdiction of the Court provides the necessary authority for the issue of the Letter of Request, the absence of such authority would simply be the result of neither the New South Wales Parliament nor the Uniform Rules Committee passing the necessary legislation or making the relevant rule to permit New South Wales to have the full benefit of the Convention. If, which I do not decide, New South Wales does not have the full benefit of the Convention because legislation, or delegated legislation, is needed and has not been passed, that does not alter the fact that for the Court to issue a subpoena requiring compliance by a company in Hong Kong would be to encroach on the sovereignty of the People's Republic of China. … 68. If an application were made for the Court to issue a Letter of Request, the question would arise whether the documents sought have been identified with sufficient particularity. Section 33(6) of the Evidence on Commission Act provides that where the Court is dealing with an application from a Court or Tribunal outside the State for an order for evidence to be obtained in the State, the Court may make an order for the production of documents, but an order under s 33 must not require a person to state what documents relevant to the proceedings to which the application for the order relates are or have been in the person's possession, custody or power and must not require a person to produce any documents "other than particular documents specified in the order and appearing to the Court making the order to be, or likely to be, in the person's possession, custody or power." (Section 33(6)(b).) Section 76(4) of the Hong Kong Evidence Ordinance is to the same effect. 69 There is authority that a Letter of Request for the production of documents should not be expressed more widely than a request to which this Court would give effect pursuant to s 33 of the Evidence on Commission Act (Panayiotou v Sony Music Entertainment UK Limited at 152; Charman v Charman [2005] EWCA Civ 1606; [2005] All ER (D) 298 at [29]). 70 It may be that a subpoena for production could be expressed more widely than a letter of request that sought an order from the foreign court for the production of particular documents specified in the order as being documents appearing to the Court making the order to be, or to be likely to be, in the possession, custody or power of the person subject to the order (but cf Panayiotou v Sony Music Entertainment UK Limited at 152). That question can be addressed if and when the issue of a Letter of Request is sought. I do not consider the possibility that the avenue for production of documents pursuant to a Letter of Request is more restricted than the avenue of production pursuant to a subpoena is sufficient reason to construe the power under r 11.5 as authorising the issue of a subpoena where to do so would infringe the sovereignty of a foreign State.
23. The plaintiff submits that the decision of the Full Court of Western Australia in Novotny v Todd [2002] WASCA 79 (Novotny v Todd), does not deny the existence of an inherent jurisdiction ("albeit circumscribed by a request for particular documents which are admissible in evidence, material to an issue in the action and which the Court is satisfied exist or are likely to exist") referring to what was said by McLure J (as her Honour then was) at [39]. See also the discussion in M Davies, A Bell & P Brereton, Nygh's Conflict of Laws in Australia (9th ed, 2014, LexisNexis) (Nygh's) at 282. It is noted that in Novotny v Todd it was not suggested by any party that the Western Australian Court of Appeal had inherent jurisdiction and, for the purposes of making the determination in the proceedings, McLure J proceeded on the assumption that it did not (at [41]), having noted (at [39]) that both sides appeared to accept the correctness of the conclusion of Gummow J in Elna Australia.
24. The issue is of significance in the present case insofar as the plaintiff cannot rely on the 1970 Convention in order to seek to invoke the procedure for assistance in respect of documents held in Bermuda (since the 1970 Convention is not in force in that jurisdiction).
25. Were it to be necessary to determine this issue, I would be slow to depart from the reasoning of Gummow J in Elna Australia. As it is, it is not necessary here to determine that issue because even were I to be satisfied that there was inherent jurisdiction to issue a letter of request for assistance in the enforcement of a subpoena in respect of any documents held in Bermuda, I would not presently be prepared to exercise such jurisdiction. That is because the first defendant has already been ordered to produce documents under her control and, on the evidence before me, there is nothing to suggest that she is not able to require the release of medical records from Dr Campbell in Bermuda.
26. As to the position in relation to the jurisdictions in the United States of America (Nevada, California and Florida), the same practical position follows although the question of inherent jurisdiction does not arise because the 1970 Convention there applies.
27. Had it been necessary to determine whether, for the purpose of the 1970 Convention, this was an appropriate case to issue letters of request, I note that Article 1 of the 1970 Convention permits the making of a request; Article 3 specifies the form of request and Article 23 provides that a contracting state may at the time of signature, ratification or accession, declare that it will not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents as known in common law countries. Australia, pursuant to Article 23, will not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents.
28. Therefore, it would be necessary to be satisfied that the purpose of the issue of the letters in the present case would not be to obtain pre-trial discovery of documents. As the plaintiff notes, the concept of documents being used for pre-trial discovery has been contrasted with documents obtained for the purpose of use as evidence at trial (see Nygh's at 281-282; British American Tobacco Australia Services Ltd v Eubanks for the United States of America (2004) 60 NSWLR 483; [2004] NSWCA 158 at [40] (BAT v Eubanks)).
29. In BAT v Eubanks, Spigelman CJ noted that whether the order is sought for any illegitimate investigation rather than to obtain evidence to be adduced at trial is to be determined principally by reference to the terms of the letter of request and of the proposed order of the court, having regard to the whole of the evidence before the court (see at [42], his Honour citing Burnton J in Gredd v Arpad Busson at [27]).
30. In Elna Australia, Gummow J expressed the view that evidence for these purposes does not include documents on their own (see at 465 - dealing with the equivalent Commonwealth legislation). However, a contrary view was taken by Rogers J in Westpac Banking Corporation v Halabi (Supreme Court (NSW), Rogers J, 22 December 1987, unrep) at 27-28. There, Rogers J, observing that documents are as much a form of evidence as is oral evidence and the tender of documents is a form of the taking of evidence, considered that a letter of request, in requesting the production of documents, includes the taking of evidence (i.e., evidence from the makers of the documents of the matters set out in the documents). In Biota Holdings Ltd v Glaxo Group Ltd [2006] VSC 71 at [10], Whelan J, in obiter dicta, appears to have been inclined to that view though his Honour did not need to decide the point.
31. I would have been inclined to the view that the 1970 Convention permitted the issuing of letters of request seeking the production of documents for use as evidence at a trial.
32. I also note that, pursuant to s 6(2) of the Evidence on Commission Act, regard is to be had to whether: the person is willing or able to come to the State to give evidence in the proceeding; the person will be able to give evidence material to any issue to be tried in the proceeding; and, having regard to the interests of the parties to the proceeding, justice will be better served by making or refusing to make the order. In that regard, there is no evidence as to the willingness or otherwise of the persons in question to come to this court to give evidence (though some evidence as to willingness to comply with a subpoena only if one is issued at least on the part of one of the doctors) but that is arguably of little relevance where what is sought is only documentary production; the potential relevance of the evidence to issues in the proceedings has already been the subject of consideration by Lindsay J and I do not propose to revisit that issue; and, in all the circumstances, I would accept that it is in the interests of justice that such documents be produced.
33. Therefore, subject to the outcome of the steps presently being taken by the first defendant to procure the release of the medical records, I would be prepared to give leave for the issue of subpoenas and letters of request to the doctors in the United States of America, limited to the medical records of the deceased indicating his medical condition in the period from the date he came under the care of Dr Cummings to the date of his death (as per the orders made by Lindsay J). However, I will defer making such orders until the outcome of the present requests by the first defendant is known. If the response is that there are no such records, then issuing the subpoenas/letters of request would be futile; if the documents are produced without the need for any compulsion then there will again be no need for the subpoenas/letters of request; and it will only be if the doctors or medical clinics insist upon the issue of a subpoena that it will become necessary to pursue that path. I will list the matter for directions at a later date in order to monitor the progress of the requests.

Orders

1. Accordingly, at this stage I will make the following orders: 1. Refuse leave for the issue of the notice to produce to the first defendant. 2. Refuse the application for a direction to be made to the first defendant to complete application forms for the release of medical records. 3. Refuse leave for the issue of a subpoena coupled with a letter of request to be sent to the deceased's general practitioner in Bermuda. 4. Defer the application for leave for the issue of a subpoena coupled with a letter of request to be sent to the deceased's medical practitioners/medical clinics in Nevada, California and Florida pending the outcome of the applications that have now been made by the first defendant for the release of the deceased's medical records. 5. Reserve the question of costs of the notice of motion filed 30 August 2019. 6. Stand the notice of motion over to a date to be fixed for final ruling on the deferred part of that application.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2019