Markovic v Northern Sydney Area Health Service & Anor

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

14224 of 1992 SILVANA MARKOVIC v NORTHERN SYDNEY AREA HEALTH SERVICE AND STATE OF NEW SOUTH WALES JUDGMENT 1 These proceedings were commenced by Statement of Claim filed on 19 August 1992. The court has been told that the plaintiff is in receipt of legal aid. There are two defendants, the second of which is the State of New South Wales. It is sued as the entity responsible for the Manly Baby Health Centre. 2 The plaintiff propounds a claim for damages. It is founded on negligence. It involves a claim for personal injury related to the circumstances of her birth on 7 January 1973. The claim as pleaded relates to a dislocated right hip. Since then, the plaintiff has advanced a claim relating to a congenital dislocated right hip. 3 The claim is defended. The Defence puts the plaintiff's allegations in issue. A Notice to Admit Facts has been disputed. 4 There have been previous applications for discovery and interrogatories. A Notice of Motion seeking relief against the second defendant was filed on 26 May 2000. It sought inter alia discovery of the classes of documents specified in paragraph 1 thereof. The application was heard by Master Harrison. Judgment was delivered on 7 September 2000. The Master declined to make an order in accordance with paragraph 1 (c) of the Notice of Motion. 5 A further Notice of Motion has been brought by the plaintiff against the second defendant. It was filed on 24 October 2000. It seeks the giving of discovery of the classes of documents specified in a schedule attached thereto. There are similarities to what was sought in the previous application. 6 The schedule is divided into two paragraphs. Paragraph 1 seeks discovery of the originals or copies of all documents of the classes specified therein that were in the possession of the Department of Health and the Health Commission of New South Wales between 1965 and 1975 (inclusive). Paragraph 2 seeks discovery of the originals or copies of all documents of the classes specified therein that were in the possession of the Department of Health and the Health Commission of New South Wales between 1965 and 1975 (inclusive) but which are now held by State Archives. The specified classes are the same in each paragraph. 7 The specified classes involve inter alia medical or nursing textbooks, medical, nursing or scientific journal articles or papers, conference, symposium, seminar or meeting papers, protocols, guidelines or procedures and correspondence, memoranda, minutes or file notes. 8 Certain of the documentation referred to in the specified classes relates to material containing information about the diagnosis of congenital dislocation of the hips (CDH). Certain of it relates to the early detection of CDH in neonates and infants and for the screening for CDH. Certain of it relates to the early detection of screening for CDH or any other serious childhood illness, disease or condition. Certain of it relates to protocols, guidelines and procedures for the referral by Baby Health Centre nursing sisters to medical practitioners or public hospitals. 9 The giving of discovery is governed by Pt 23 of the Supreme Court Rules 1970. In the present case, because the proceedings were commenced prior to 1 October 1996, the old regime relating to discovery which had been in force prior to that time still has application to the proceedings. Rules 5 (order for general discovery) and 7 (order for particular discovery) of the old Pt 23 enable the court to make orders in relation to discovery. The exercise of these discretionary powers is subject to the provisions of r 14. Rule 14 is in the following terms:- "The Court shall not make an order under this Part for the filing or service of any list of documents or affidavit or other document or for the production of any document unless satisfied that the order is necessary at the time when the order is made." 10 In this case, the plaintiff bears the onus of satisfying the court that the order sought should be made. As part of that task she must satisfy the court that the order is necessary in the sense provided in r 14. Otherwise, the court is prohibited from making an order. 11 Uninstructed by authority it might have been thought erroneous to ascribe some formulation by way of definition or otherwise to the term "necessary" which does not correspond with its literal meaning and which does not seem to be required by its context. It has a clear dictionary meaning (inter alia it involves the concept of that which cannot be done without or dispensed with), which is compatible with the other language used in r 14. It could be thought that the proper approach for the court to take would merely be to apply that concept to the facts of the particular case before it. Each case could be expected to turn on its own particular circumstances. 12 The practice books have for a long time recorded Boyle v Downs (1979) 1 NSWLR 192 as the authority on the meaning to be ascribed to the term "necessary" in the context of the rule. However, in those cases in which it has been followed the court seems to have merely assumed that it was correctly decided (see inter alia Yamazaki v Mustaca (1999) NSWSC 1083). Because what was said in Boyle does not sit comfortably with the terminology of the rules themselves, it has been a decision that has caused problems. Consequently, to a substantial extent, it has not been applied by judicial officers. Indeed, some had thought it to be quietly buried. 13 Largely, the meaning to be ascribed to the term "necessary" in the context of discovery is fast becoming academic. The present regime does not contain any provision similar to r 14. However, there will for some time still be a residue of cases which will have to be decided under the old regime. Be that as it may, the proper meaning of the term remains relevant in the context of interrogatories (Pt 25 r 5). 14 In Boyle , Cross J explored the question of the meaning to be given to the term and came up with a formulation of "reasonably necessary for the disposing fairly of a case" or "reasonably necessary for the disposing fairly of the cause or matter". In reaching that formulation, his Honour appears to have looked inter alia to past decisions (many of which dealt with rules of court expressed in terminology different to r 14) and to the rules of court in other places rather than focus on the construction of the language of the rule itself. 15 At the outset, it needs to be noted that the word "reasonably" and words such as "for the disposing fairly of the cause or matter" do not appear in r 14. Despite that, the rule has been construed on a basis that involves the importing of such additional language into the text of the rule. 16 The importation of the term "reasonably" might be seen as an introduction of a qualification of the term "necessary" which is not justified by the language used in r 14. Minds may differ as to the impact had by the importation of the words "for the disposing fairly of the cause or matter" or the like. Such words may be found in rules that had been in force in other jurisdictions (see inter alia RSC Order XXX1 r 12 of 1893). Rule 12 (which is a rule relating to interrogatories) enabled leave to be given where the judge considered that the proposed interrogatory was necessary for disposing fairly of the cause or matter or for the saving of costs. 17 The construction effected by the importation of the additional wording may simply reflect a confusion or failure to give effect to the two aspects involved in the exercise of the powers of the court under the old Pt 23. There is the exercise of the discretionary power conferred inter alia by rules 5 and 7 (which involves the satisfying of any threshold requirement contained in those rules). There is the satisfying of the requirements imposed by r 14 (which operates as a prohibition to the making of an order). 18 In Boyle , the rule that confers the discretionary power itself seems to have fallen from attention. At least largely, the cases that are cited in the judgment are not authority for importing the concept of "reasonableness" as a qualification for what is "necessary". However, the references to that concept of "reasonableness" in those cases is at least consistent with it being used in a discretionary context. This is best illustrated in the reference by Cross J to what Sholl J said in Dunbar v Perc (1956) VLR 583 at 588 which appears on p 204 of Boyle . It indicates that Sholl J was referring to "proper and reasonable" in the context of the unfettered discretion of the court which was to be exercised in the circumstances of the particular case. 19 The task for this Court is to construe the actual language of the rule that governs the application. At the time it was made, the draftsman had the benefit of what had been decided in past cases and the language that had been used in provisions that had been in force in other jurisdictions. The draftsman chose not to employ the word "reasonably" or any wording such as "reasonably necessary for the disposing fairly of the cause or matter" in the rule. In addressing the task of construction it is important to observe also that the rule requires that the court be satisfied that the order is necessary at the time when the order is made. 20 The basis upon which the second defendant has been made a party to these proceedings is alleged in inter alia paragraphs 11 and 12 of the Statement of Claim. The paragraphs are as follows:- "11. At all material times the Second Defendant conducted Manly Baby Health Centre which provided and held itself out as providing health care services to babies and advise (sic) to mothers of babies concerning, inter alia, disabilities discoverable on examination by a competent registered nurse employed at the said Centre. 12. From time to time during the period commencing about 6 weeks after the Plaintiff's birth until she was aged about 14 months, the Plaintiff was taken by her mother to the Baby Health Centre and there examined from time to time by nursing staff employed at the said Centre."

Paragraphs 13 and 14 contain the allegations that are made in respect of duty of care and breach thereof. 21 Prior to the bringing of the Notice of Motion dealt with by Master Harrison, the plaintiff had served a Notice of Discovery. This was an enclosure to a letter dated 18 January 1994. A verified list of documents was prepared. The affidavit verifying the list was sworn on 23 September 1994. The verified list was forwarded to the solicitors for the plaintiff by letter dated 31 July 1997. 22 There is evidence that following an extensive search, the Department of Health was unable to locate any records or files from the Manly Baby Health Centre dating back to 1973 (see letter dated 27 May 1994 from the Crown Solicitor's Office). The plaintiff accepts that records or files relating to the Centre or the plaintiff herself are no longer had by the Department. 23 Like its predecessor, this application is in the nature of a challenge to the sufficiency of the discovery that has been given. Accordingly, the plaintiff must look to the provisions of r 7. It is in the following terms:- "7 Where, at any stage of the proceedings, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed or served in the proceedings that there are grounds for a belief that some document or class of document relating to any matter in question in the proceedings may be or may have been in the possession, custody or power of a party, the Court may order that party - (a) to make an affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and (b) to serve the affidavit on any other party."

It is a rule which contains its own threshold requirements. 24 During the course of submissions in reply, counsel for the plaintiff abandoned the application for discovery of the documents referred to in paragraph 2 of the schedule to the Notice of Motion. Compliance with that paragraph would have involved the exercise of searching the State Archives to ascertain which of the documents falling within the specified classes were now held by State Archives. Such an exercise would have been pointless and may have been very time consuming and expensive. 25 Counsel for the plaintiff has made detailed written submissions. These have been supplemented orally. At the outset a general observation needs to be made that there is in a number of respects a lack of material to support what is sought in the application. 26 It may be that the second defendant has or has had some of the documentation sought in the application. However, what it may have falls into the area of speculation. The material falls short of demonstrating the requisite grounds for belief in respect of what is sought to be further discovered. 27 A number of arguments are advanced by the second defendant in opposition to the application. A principal area of dispute concerns the matter of whether or not the specified classes of documentation relate to any matter in question in the proceedings. The plaintiff sees the knowledge of the State itself as being of relevance. The second defendant takes a much narrower view on questions of relevance. 28 The claim relates to the operations of a Baby Health Centre. The limited material before the court suggests that a service was extended in premises provided by the Council, by nursing staff paid by either the Department of Health or the Health Commission. The Country Women's Association also seems to have had some involvement. The limited material also suggests that the Centres were utilised by non-profit and charitable organisations and had a role in the educative and healthy lifestyle programmes conducted by the Department of Health. Initially, an infant care, feeding and hygiene service was provided. Later, the emphasis changed to physical, mental and social health. 29 The claim relates to a limited period commencing about six weeks after the birth of the plaintiff and concluding when she was aged about fourteen months during 1973/1974. It is alleged that there was a failure to inter alia either diagnose or detect that the plaintiff had a dislocated right hip by the nurses at the Centre. 30 I shall now make certain general observations as to the discovery that is sought. These are not intended to be exhaustive of the problems confronting the plaintiff. It has the potential to involve a large volume of documentation. A period of 10 years is involved. Discovery of it could be expected to be time consuming and expensive. In the main, I am not satisfied that the specified classes of documents can be said to relate to a matter in question in the proceedings. To the extent that it seeks discovery of inter alia text books, journal articles or papers it seems to me to relate to documentation which would not usually be the subject of a court order and I am not satisfied that it should be so in this case. From what has been said from the Bar Table, it appears that the plaintiff does have expert evidence available to her. It does not seem to me that it is said that she is unable to prove a case against the second defendant without such further discovery. In any event, the evidence is lacking in respect of any such necessity. Indeed, it appeared from the approach initially taken during submissions that the plaintiff had adopted the view that she did not have to satisfy the requirements of r 14. In my view, the indices of a fishing expedition are present. 31 As has been said, the power to order discovery is a discretionary one. It is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served. The power can only be exercised when the threshold requirements of r 7 and the requirements of r 14 have been satisfied. 32 In the circumstances of this case, I am not satisfied that the discretionary power of the court should be exercised to make any order. In particular, I consider that on the material placed before the court, the plaintiff has failed to discharge the onus of satisfying both the threshold requirements of r 7 and the requirements of r 14. Accordingly, the court is prohibited from making an order. This result flows whether the approach taken in Boyle is followed or r 14 is given its literal meaning. 33 Therefore, the Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion. The Exhibits may be returned. **********

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