McClure v Lam (No.2)

File Number(s): 2020/202054

Publication restriction: Not Applicable

EX TEMPORE JUDGMENT

1. On 24 October 2025, the Court heard an application, by the defendant, to set aside a subpoena to produce which had been filed on 21 August 2025.

2. The subpoena was addressed to the defendant and sought production of his records.

3. The defendant contended that, in correspondence and before the Court, there was no legitimate forensic purpose for the issuing of the subpoena. That objection brought and argued by the defendant, failed.

4. The defendant objected to the subpoena on a second basis, namely that it would be oppressive to him to have to produce his clinical records because of the number of his patients who may have been caught by the subpoena and the inadequacy of the searching capacity of the software used by the defendant. As I said in my reasons, in McClure v Lam [2025] NSWSC 1272, that evidence did not set out many of the facts ordinarily brought before the Court by a party seeking to establish oppression.

5. However, I took the view that, at least in the first instance in dealing with the subpoena, the Court had to weigh the proportionality of the task which was to be undertaken when compared to the apparent relevance and forensic need for the documents. I was satisfied that one part of the subpoena, namely, the use of the phrase "Prolapse procedures", and the generality of that description, as it was unaccompanied by any specific Medicare item number for such a procedure, would mean that the task, and in the presence of the limited capacity of searching the software, would be oppressive.

6. I stood the matter over until today for the parties to determine what orders were agreed. The parties are agreed on an order which will shortly be pronounced for the production of documents under subpoena. The parties are agreed that the balance of the Notice of Motion of the defendant be otherwise dismissed. The parties are unable to agree on costs.

7. In my view, this is a matter in which both parties have had a measure of success, and had both parties sat down together with reasonable, objective and open minds, the matter would never have come to Court.

8. Accordingly, my order is that each party pay its own costs of the Notice of Motion filed 21 August 2025.

9. The formal orders of the Court will be,

10. Order that, by 28 November 2025, the defendant is to produce the following documents under subpoena, namely an identified copy of all clinical records created for all patients who underwent procedures from 1 January 2011 to 31 December 2013, carrying the following Medicare item numbers: (i) 35599 and (ii) 35570, 35571, or 35573.

11. Order that the Notice of Motion filed by the defendant on 21 August 2025 be otherwise dismissed.

12. Order that each party pay her and his own costs of that Motion.

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