McClure v Lam

Catchwords: CIVIL PROCEDURE – Subpoenas – Application to set aside – Legitimate forensic purpose – Oppressive – Where legitimate forensic purpose demonstrated through a subpoena designed to test the evidence of a practitioner’s usual medical practice – Where oppression demonstrated due to large number of patient records requiring examination due to subpoena as currently formulated – Proportionality of the task which is to be undertaken to the apparent relevance and forensic need for the documents

Legislation Cited: Not Applicable

Cases Cited: Secretary of Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Texts Cited: Not Applicable

Category: Procedural rulings

Parties: Rachel McClure (P)
Alan Lam (D)

Representation: Counsel:
E Romaniuk SC (P)
S Grey (D)
Solicitors:
Martin Street Lawyers (P)
Avant Law Pty Ltd (D)

File Number(s): 2020/202054

Publication restriction: Not Applicable

EX TEMPORE JUDGMENT

1. This is an application by Notice of Motion, by the defendant, to set aside a subpoena to produce, filed on 21 August 2025. The subpoena was addressed to the defendant and sought production of his records.

The Subpoena

2. The subpoena was pressed for the production of documents described in this way:

“(a) All clinical files for all patients during 1 January 2011 to 31 December 2015 that [the defendant] advised his patient to proceed with a TVT, Elevate and prolapse procedures; and

(b) All operation files of all patients during 1 January 2011 to 31 December 2015 that [the defendant] performed at TVT, Elevate and prolapse procedures.”

3. Leaving aside the infelicity of the language used, it is clear that what is sought, by the subpoena, is the production of all clinical files for all patients who were advised to proceed with the identified and described procedures, and all operation files of all patients upon whom those procedures were performed.

4. The defendant objects to production, submitting that the plaintiff does not have, and cannot show, any legitimate forensic purpose for the subpoena and further, that, having regards to the terms of the subpoena, it would be oppressive to require the defendant to comply with it.

The Proceedings

5. The proceedings concern an operative procedure undertaken by the defendant, on the plaintiff, on 26 November 2013. That surgery is described in an Operation Report as being a procedure of the following kind:

“Anterior/posterior ELEVATE sacrospinous colpopexy, TVT-O sling cystoscopy.”

6. It will be convenient to refer to that description of the operation as ”the procedure”.

7. The plaintiff claims that, in the consultations leading up to the undertaking of that procedure, the defendant failed to give appropriate advice with respect to the plaintiff’s condition, including advice that she should accept a conservative line of treatment for her condition, rather than to undergo surgery.

8. She further contends that the particular procedure was, for her, an inappropriate procedure, and that a different procedure ought to have been undertaken. Finally, she contends that in the course of carrying out the surgery, there were departures from a reasonable standard by the way in which the surgery was undertaken.

9. The defendant has served a statement intended to summarise the evidence he proposes to give in the proceedings. During the course of that statement, on a number of occasions, the defendant says that he has no independent recollection of any discussion with the plaintiff, and that his description of what occurred in the preoperative consultations is based upon a review of the notes of the consultation, a letter which he sent to the plaintiff's GP with a copy to her, and his usual practice.

10. He describes his usual practice in this way at, paragraph 41 of his statement:

"My usual practice as at August 2013 (and now) during a first consultation with a patient with a pelvic organ prolapse is that, after taking a patient's history and performing a clinical examination, I ordinarily have a lengthy discussion with the patient covering the following topics:

a. a description of the type of prolapse detected;

b. an explanation as to the possible causes for her prolapse;

c. an explanation of the types of treatment which were available to treat the prolapse together with an explanation of the risks and benefits associated with each type of treatment; and

d. I also provided patients with documents about the risks and benefits of pelvic prolapse surgery to take home and read before our next consultation.”

11. In paragraph 57 of his statement, with respect to the second consultation, and in other paragraphs with respect to other consultations, the defendant also notes that his account of what occurred relies upon his usual practice. He also relies upon such notes as he made.

Legitimate Forensic Purpose

12. The plaintiff submits that, having regard to the requisite statement of principle in the Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, the Court would proceed to be satisfied that a legitimate forensic purpose existed if the documents sought were "apparently relevant" to the issues in the proceedings, or if it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue.

13. Given that the defendant relies upon his usual practice as a basis for describing, in his evidence, what occurred, I am satisfied that the subpoenas which seek to test the existence of a usual practice and what the content of that usual practice was, by reference to the clinical records of other patients, demonstrates a legitimate forensic purpose. That is the more so because there is a real factual issue in this case between the plaintiff's account of what occurred when she saw the defendant as to what she was actually told, when, and in what detail, and the defendant’s statement.

14. Accordingly, the first objection by the defendant to the subpoena fails.

Oppression

15. The second objection is based upon the proposition that it would be oppressive to the defendant to have to produce all of the documents falling within the ambit of the subpoena, as I have earlier described it.

16. It is apparent from the affidavit of the solicitor for the defendant, Ms Norville, dated 16 October 2025, that the practice management software used by the defendant, at the relevant time, is not capable of being subject to a global search for the identification of particular key words, or a combination of key words, or for the identification of procedures which have been the subject of advice given to patients, by the defendant.

17. The unchallenged evidence of the defendant's solicitor is that there is no search function which can automatically identify the symptom, or symptoms, or condition with which a patient presented to the defendant, or the nature of advice which was provided to each defendant. Nor, apparently, is there any search function that, of itself and without more, can automatically identify whether or not a particular mesh, known as “Elevate Mesh”, was in fact used in the vaginal repair procedure. However, the evidence is that the practice management software is capable of identifying patients who have been the subject of a procedure described by a particular Medicare Item Number.

18. It appears from the evidence of the defendant's solicitors that, with respect to a procedure described as a "procedure using a female synthetic mid-urethral sling" carrying Medicare Item Number 35599, that such a procedure was used by the defendant 159 times in the five-year period covered by the subpoena.

19. With respect to vaginal repair procedures, it appears that, with respect to procedures undertaken by the defendant in the period specified in the subpoena:

"1. Medicare item 35570 - Anterior vaginal compartment repair by vaginal approach for pelvic organ prolapse - 67 times,

2. Medicare item 35571 - Posterior vaginal compartment repair by vaginal approach for pelvic organ prolapse - 62 times, and

3. Medicare item number 35573 - Anterior and posterior vaginal compartment repair by vaginal approach for pelvic organ prolapse - 338 times."

20. In other words, it is possible to identify 467 patients who have been subjected to a repair for pelvic organ prolapse in procedures undertaken by the defendant using, or which could potentially involve the use of, Elevate Mesh. Those procedures may or may not have incorporated the use of a mid-urethral sling.

21. Leaving aside those patients who may be identified in that way, by reference to Medicare item numbers, the evidence is that there would need to be a manual review of the records of 1,338 patients who had engaged in 2,299 consultations in the period during which advice may have been given about procedures or consultations in which the particular procedures were discussed.

22. The affidavit of the defendant's solicitor does not contain evidence as to the time it would take for the examination of a medical record to ascertain whether advice was, or was not, given with respect to a procedure of the kind which the defendant considered may be relevant, nor does it identify the nature of the resources which would need to be engaged to undertake the task, nor does it identify the cost to the defendant, or those who are litigating the matter, of undertaking this function, the number of people who might be required to undertake it, the length of time it might take, or any other quantitative evidence of that kind. Nevertheless, I can accept that a task where the records of 1,338 patients would need to be examined might take a significant period of time.

23. When one is considering an objection to a subpoena on the basis of an oppression, it is a matter of directing attention, at least in the first instance, to the proportionality of the task which is to be undertaken and comparing it to the apparent relevance and forensic need for the documents. As I have earlier said, I am satisfied that the subject matter of the subpoenas carries a legitimate forensic purpose.

24. I cannot be satisfied, presently, that the task could be undertaken without some degree of oppression, given the breadth of the documents which are sought. Put differently, I am satisfied that, based on the terms of the subpoena presently pressed, including the use of the phrase "prolapse procedures", it would not be anything other than oppressive. On that basis, I cannot allow this subpoena for production. However, lest there be any doubt in the parties' minds, were a subpoena to be issued in the following terms, it would, in my opinion, demonstrate a legitimate forensic purpose and would not be oppressive.

25. Such subpoena would be one which called for the production of the following documents, created or modified during the period 1 January 2011 to 31 December 2013 – all clinical records for all patients who underwent procedures carrying the following Medicare item numbers: 35599, 35570, 35571 and 35573 – and would demonstrate a clearly legitimate forensic purpose and would not, in my assessment, be oppressive. That is because the practice management system is capable of being searched to identify the particular files of the patients, and those files can therefore be extracted, copied and provided in answer to the subpoena with relatively little administrative effort.

26. If, upon reflection, the plaintiff chooses to issue a further subpoena, then that may be a matter that requires consideration in due course.

Orders

27. I make the following orders:

28. The subpoena to produce, filed by the plaintiff on 21 August 2025, be set aside.

29. Stand the proceedings over for further directions to 31 October 2025, before Garling J.

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